Urban Ex Rel. Urban v. Jefferson County School District R-1

PUBLISH

UNITED STATES COURT OF APPEALS
Filed 7/16/96
TENTH CIRCUIT

GREGORY G. URBAN, by Ronald
and Janice Urban,

Plaintiff - Appellant,
No. 95-1111
v.

JEFFERSON COUNTY SCHOOL
DISTRICT R-1,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D. Ct. No. 93-S-908)

William R. Baesman, Littleton, Colorado (Kevin M. Baird, Gorsuch, Kirgis, L.L.C.,
Denver, Colorado, with him on the briefs), appearing for the Plaintiff-Appellant.

Alan J. Canner (Gerald A. Caplan, Alexander Halpern, and Susan S. Schermerhorn,
with him on the brief), Caplan & Earnest, Boulder, Colorado, for the Defendant-
Appellee.

Before TACHA, MCKAY, and JONES, * Circuit Judges.

TACHA, Circuit Judge.

The Honorable Nathaniel R. Jones, Senior Circuit Judge, United States Court of
*

Appeals for the Sixth Circuit, sitting by designation.
 Gregory Urban (“Gregory”) has multiple disabilities that include severe

retardation and delays in speech and motor skills. Jefferson County School District

(“the District”) refused to place him at the high school of his choice. By and through

his parents Ronald and Janice Urban, Gregory brought this action for injunctive

relief pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.

§§ 1400-1485, the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-

12213, section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and 42 U.S.C. §

1983. The district court dismissed two of Gregory’s eight claims for failure to

exhaust administrative remedies, granted summary judgment in favor of the District

on the remaining claims, and denied Gregory’s request for attorney’s fees. Our

jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

I. BACKGROUND

The IDEA provides federal money to state and local agencies for the education

of disabled children. The Act guarantees all disabled children between the ages of

three and twenty-one access to “a free appropriate public education which

emphasizes special education and related services designed to meet their unique

needs . . . .” 20 U.S.C. § 1400(c). It also creates an “obligation to educate disabled

children in the ‘least restrictive environment’ in which they can receive an

appropriate education.” Murray v. Montrose County Sch. Dist. RE-1J, 51 F.3d 921,

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926 (10th Cir.) (citing 20 U.S.C. § 1412(5)(B)), cert. denied, 116 S. Ct. 278 (1995).

In order to implement these goals, the IDEA requires the state to provide each

disabled child with an individualized education program (IEP). An IEP is a written

statement of (1) the child’s present performance level, (2) the goals and instructional

objectives to be attained, (3) the specific educational services to be provided, (4) the

child’s needed transition services, (5) the projected dates for initiation and

completion of such services, and (6) the criteria and procedures to be used to assess

progress toward the instructional objectives. 20 U.S.C. §§ 1414(a)(5), 1401(a)(20).

The part of the IEP at issue in this case is the statement of transition services--

activities that help the student move from school to a post-school environment. 20

U.S.C. § 1401(a)(19).

The IDEA places special emphasis on parental participation in the

development of the IEP, requiring written parental notification of any change of or

refusal to change the “identification, evaluation, or educational placement of the

child or the provision of a free appropriate public education to the child . . . .” 20

U.S.C. § 1415(b)(1)(C). Parents are also entitled to bring a complaint on any matter

relating to the evaluation or placement of their child and to seek an impartial due

process hearing after bringing a complaint. 20 U.S.C. § 1415(b)(2).

Gregory and his family moved to Evergreen, Colorado in November 1991, just

before Gregory turned eighteen years old. School district officials placed Gregory

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in Golden High School and scheduled a special education conference to develop his

IEP. Gregory’s parents consented to this placement believing that it would last only

until the end of the school year. Gregory attended Golden High School, however,

until he was twenty-one, the age at which he became ineligible for services under the

IDEA. Had he not been disabled, Gregory would have attended Evergreen High

School.

At Golden High School, Gregory participated in the Challenge Program and

P.E. Plus. The Challenge Program was designed to provide education and support

services to children with severe disabilities. As part of the program, Gregory

participated in job site training known as “shadowing,” in which he performed light

cleaning at a Pizza Hut in Golden and delivered newspapers for the Golden

Transcript. P.E. Plus was an adaptive physical education program. Neither the

Challenge Program nor P.E. Plus was available at Gregory’s neighborhood high

school in Evergreen.

School officials held the initial conference to develop Gregory’s IEP on

February 14, 1992. Gregory’s IEP recommended that the Challenge Program at

Golden High School would constitute placement in the least restrictive environment

for him. Gregory’s parents were not present at the conference because they could not

take time off from work. They subsequently sought a hearing before an Impartial

Hearing Officer (IHO), arguing that the District violated Gregory’s right to a free

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appropriate public education by (1) assigning Gregory to a school other than the one

which he would have attended had he not been disabled and (2) failing to assess

Gregory’s need for, make IEP provision for, and provide transition services. The

parties resolved other matters by stipulation prior to the hearing.

The IHO determined that the District failed to provide Gregory with a free

appropriate public education because his IEP had not provided a statement of

transition services. Consequently, the IHO ordered the IEP team to reconvene and

create a new IEP that provided for transition services. The IHO found that Gregory

had a limited ability to generalize, in that he could not readily transfer skills from the

environment in which he learned them to other similar environments. Based on this

finding, the IHO decided that the statement of transition services in the new IEP

must be “predicated” on Gregory’s limited ability to generalize, and that such

transition services must include experiences in his post-school environment in

Evergreen, rather than in Golden. The IHO further decided that Gregory should be

placed in the Challenge Program only after consideration of all available options in

Evergreen and only if the IEP required such a placement. However, the IHO did find

that aside from the lack of a statement of transition services and without reference

to the least restrictive environment question, Gregory was receiving an appropriate

education in the Challenge Program, and that the program provided Gregory with

educational benefit. The IHO did not decide whether Gregory’s least restrictive

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environment was at Evergreen High School or Golden High School because such a

determination could only be made by reference to a complete IEP. Finally, the IHO

found that Gregory’s parents had not given their informed consent to the IEP because

they were not present when school officials met to create it. The IHO directed the

District to schedule the meetings to create a new IEP at times when Gregory’s

parents could attend.

The District appealed several aspects of the IHO’s decision to an

Administrative Law Judge (ALJ), as permitted by 20 U.S.C. § 1415(c). The District

did not appeal the IHO’s order to create a new IEP. Gregory’s parents cross-

appealed, requesting that the ALJ require the District to place Gregory at Evergreen

High School. The ALJ deferred to the IHO’s findings of fact, and made additional

findings after hearing evidence. Like the IHO, the ALJ ordered school officials to

reconvene a new IEP meeting. The ALJ rejected the argument that Gregory was

entitled to placement at Evergreen High School as a matter of law. The ALJ noted,

however, that the District should consider whether services available in Evergreen

could be used for Gregory’s IEP, and should specifically identify Gregory’s post-

school environment when determining Gregory’s need for transition services. The

ALJ also affirmed the IHO’s conclusion that the District must hold new IEP meetings

at times that accommodated Gregory’s parents’ work schedules. The ALJ held that

the IHO erred when she concluded that transition services must be focused on

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Evergreen, because such determinations are properly made by the IEP committee.

The ALJ also held that the IHO erred when she decided that Gregory’s transition

services must be “predicated” on his limited ability to generalize, to the extent that

“predicate” implies the sole basis for the transition services, because such a directive

is beyond the authority of administrative review.

Pursuant to the ALJ’s order, the District convened a number of meetings, in

which Gregory’s parents participated, to develop a new IEP for Gregory. This new

IEP, completed on May 4, 1993, again assigned Gregory to the Challenge Program

at Golden High School. Prior to that date, on April 27, 1993, Gregory filed this

action in the district court. The district court denied Gregory’s motion for a

preliminary injunction that would have required the District to place Gregory in

Evergreen High School. The court granted the District’s motion to dismiss

Gregory’s sixth and eighth claims for lack of subject matter jurisdiction due to

Gregory’s failure to exhaust administrative remedies.

The District then moved for summary judgment on the remaining claims.

Gregory moved for summary judgment on his seventh claim and requested attorney’s

fees. The district court granted summary judgment to the District, denied Gregory’s

motion, and denied Gregory’s request for attorneys fees. Urban v. Jefferson County

Sch. Dist. R-1, 870 F. Supp. 1558 (D. Colo. 1994). In its summary judgment order,

the court concluded that Gregory was receiving a free appropriate public education

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at Golden High School, and noted that Gregory has no right, as a matter of law, to

placement at his neighborhood school under either the IDEA or the Rehabilitation

Act. Id. at 1567-68. The court further held that the ADA does not give Gregory the

right to reject the placement selected by school officials. Id. at 1569. Finally,

because the court found no violation of Gregory’s statutory rights, it rejected

Gregory’s § 1983 claim. Id. This appeal followed.

II. DISCUSSION

Gregory raises four issues on appeal. First, he argues that the district court

erred when it held that it lacked subject matter jurisdiction over his sixth and eighth

claims. Second, Gregory contends that he is entitled to compensatory services for

the seventeen months he was deprived of an IEP with a statement of transition

services. Third, he argues that the district court erred by granting summary judgment

to the District on his ADA claim. Finally, Gregory contends that he was the

prevailing party under the ALJ’s decision and, consequently, that he is entitled to

attorney’s fees.

A. Failure to exhaust administrative remedies

We review the district court’s decision to dismiss claims six and eight for lack

of subject matter jurisdiction de novo. Fostvedt v. United States, 978 F.2d 1201,

1202 (10th Cir. 1992), cert. denied, 507 U.S. 988 (1993). Under the IDEA, most

plaintiffs must exhaust the administrative remedies provided in 20 U.S.C. §§

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1415(b)(2) and 1415(c) in order to receive judicial review. 20 U.S.C. § 1415(e)(2);

Honig v. Doe, 484 U.S. 305, 326-27 (1988); Association for Community Living in

Colorado v. Romer, 992 F.2d 1040, 1043 (10th Cir. 1993). The purpose of the

exhaustion rule is to permit agencies to exercise discretion and apply their expertise,

to allow the complete development of the record before judicial review, to prevent

parties from circumventing the procedures established by Congress, and to avoid

unnecessary judicial decisions by giving the agency an opportunity to correct errors.

Ass’n for Community Living, 992 F.2d at 1044. Exhaustion is not required,

however, when administrative remedies would be futile, when they would fail to

provide relief, or when “an agency has adopted a policy or pursued a practice of

generally applicability that is contrary to the law.” Id. (quoting H.R. Rep. No. 296,

99th Cong., 1st Sess. at 7 (1985)). Unless this case falls within one of the three

exceptions, Gregory is not entitled to judicial review of his sixth and eighth claims

absent exhaustion of his administrative remedies.

Pursuant to the ALJ’s order, the District created a second IEP. Gregory’s sixth

and eighth claims for relief stated objections to the procedures utilized and the result

reached in the second IEP. The sixth claim alleged that the District violated the

IDEA’s procedural requirements by preventing Gregory’s parents from participating

in the IEP meetings and by placing Gregory at Golden High School without

considering a placement at Evergreen High School. The eighth claim alleged that the

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District denied Gregory a free appropriate public education. Because Gregory had

not pursued any administrative remedies with regard to the second IEP, the district

court had no administrative record, and thus no factual basis, for review.

Accordingly, the court dismissed the sixth and eighth claims for failure to exhaust

administrative remedies.

Gregory argues that he should not be required to exhaust his administrative

remedies because his complaints regarding the second IEP are the same as those

raised in the administrative proceedings concerning the first IEP. Nothing in the

IDEA, however, states that a plaintiff need not exhaust administrative remedies if his

objection to a second IEP is the same as his objection to his first IEP. Even if

Gregory was dissatisfied with the second IEP for the same reason that he had been

dissatisfied with the first, he still had an obligation to pursue administrative

remedies. 20 U.S.C. § 1415(e)(2). The district court would then have had the

complete administrative record it needed to review his allegations.

Furthermore, Gregory’s claims do not satisfy any of the three exceptions to the

exhaustion requirement. Administrative relief would not have been futile or

inadequate. Administrative remedies are generally futile or inadequate when

plaintiffs allege “structural or systemic failure and seek systemwide reforms.” Ass’n

for Community Living, 992 F.2d at 1044. Gregory’s claims do not allege such

systemic violations--his claims are directed solely at the creation of his IEP, and the

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IDEA specifically leaves the initial determinations of such claims to administrative

decisionmakers. 20 U.S.C. §§ 1415(b)(2), 1415(c), 1415(e)(2). To fall into the third

exception, the District must have adopted a policy of general applicability contrary

to law which “thereby renders agency expertise and the factual development of an

administrative record less important.” Ass’n for Community Living, 922 F.2d at

1044. Gregory’s allegations raise factual questions about the meetings in which the

District created the second IEP. The district court simply cannot review this matter

without a complete administrative record. We conclude that the district court

correctly dismissed the sixth and eighth claims for lack of jurisdiction. To hold

otherwise would be contrary to the explicit language of the statute and would

undermine the purposes of the exhaustion requirement.

B. Compensatory Services

Under the IDEA, disabled children such as Gregory are entitled to a free

appropriate public education. 20 U.S.C. § 1400(c). Gregory claims that the District

deprived him of an appropriate education for seventeen months by failing to provide

an IEP containing a statement of transition services. He further claims that he is

entitled to compensatory education as a remedy. In this case we need only determine

whether Gregory was deprived of an appropriate education. Because we conclude

that no such deprivation occurred, we need not reach the issue of whether

compensatory services are an available remedy for such a violation.

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 The IHO, the ALJ, and the district court all rendered decisions on the question

of whether Gregory received an appropriate education. The IHO’s decision is

ambiguous. She found that the District failed to provide Gregory with a free

appropriate public education by failing to provide an IEP with an explicit statement

of transition services. She also found, however, that aside from the lack of transition

services and without reference to the least restrictive environment question, Gregory

did receive an appropriate education and received educational benefits in the

Challenge Program at Golden High School. The IHO remanded the case for creation

of a new IEP to remedy the lack of a statement of transition services.

On appeal, Gregory argued that as a matter of law he should be placed at

Evergreen High School. The ALJ rejected this argument on the grounds that nothing

in the statute requires a neighborhood placement and that decisions regarding

appropriate placements are properly left to school officials. The ALJ agreed with the

IHO that except for the lack of a statement of transition services, Gregory received

an appropriate education at Golden High School. The ALJ also stated that the

appropriate remedy for the omission of a statement of transition services, which he

described as a “procedural defect,” was remand for completion of the IEP.

The district court received the record of the IHO and ALJ proceedings as

required by 20 U.S.C.§ 1415(e)(2). After reviewing the record, the district court

affirmed the decisions of the ALJ regarding the District’s compliance with the IDEA.

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The district court held that Gregory did receive a free appropriate public education,

that the failure to provide a statement of transition services was a “procedural defect

and the appropriate remedy was to remand for completion of the IEP,” Urban, 870

F. Supp. at 1567, and that although it may be proper for certain transitional services

to be provided in Evergreen, it “does not necessarily follow that he must attend high

school in Evergreen,” id. The district court also held that the IDEA requirement that

disabled children be educated in the least restrictive environment did not give

Gregory a right as a matter of law to attend Evergreen High School. Id. at 1568.

Thus, the district court granted the District’s motion for summary judgment.

We review the district court’s grant of summary judgment de novo. Murray,

51 F.3d at 928. In Board of Education v. Rowley, 458 U.S. 176 (1982), the Supreme

Court outlined the approach that courts should take in reviewing administrative

decisions under the IDEA. We begin our review by asking whether the State

complied with IDEA procedures, including whether the IEP conformed with the

requirements of the Act. Id. at 206 & n.27. We then determine whether the IEP was

reasonably calculated to enable Gregory to receive educational benefits. Id. at 206.

Gregory’s IEP lacked an explicit statement of transition services: it did not

designate a specific outcome for Gregory when he reached the age of twenty-one and

it did not contain a specific set of activities for meeting that outcome. As determined

by the ALJ, Gregory’s IEP was deficient under the IDEA. This deficiency, however,

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did not amount to a denial of an appropriate education. Although the IEP did not

contain a specific statement of transition services, Gregory was not denied such

services: the IEP contained language which addressed Gregory’s transitional needs,

such as community awareness, daily living skills, and the ability to pay for

purchases. In addition, these services were focused on teaching Gregory to

generalize and transfer skills from one environment to another.

It is important to distinguish between the statement of transition services in

the IEP and the provision of transition services. The IHO and the ALJ both found

that Gregory received and benefitted from transition services in the Challenge

Program at Golden High School. After reviewing the administrative record, the

district court found that Gregory received an appropriate education at Golden High

School, and there is substantial evidence in the record to support this conclusion.

Furthermore, aside from the absence of a specific statement of transition services,

the IEP completely complied with the requirements of the Act: it contained a

statement of Gregory’s present levels of achievement, a statement of annual goals,

a statement of specific services that the District would provide (and most of these

services were geared towards helping Gregory move from school to a post-school

environment), a statement of the projected dates of such services, and a statement of

criteria and procedures for determining whether Gregory was achieving his goals.

Technical deviations from the requirements of section 1401(a)(20), such as the

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failure to include a statement of transition services, do not render an IEP entirely

invalid; to hold otherwise would “exalt form over substance.” Doe v. Defendant I,

898 F.2d 1186, 1190 (6th Cir. 1990); see also Thomas v. Cincinnati Bd. of Educ.,

918 F.2d 618, 625 (6th Cir. 1990) (stating that defendant’s failure to provide parent

with written notice of new IEP meeting was error of “technical noncompliance which

did not result in any substantial deprivation”); Burke County Bd. of Educ. v. Denton,

895 F.2d 973, 982 (4th Cir. 1990) (refusing to award compensatory education when

“the procedural faults committed by the Board . . . did not cause [the child] to lose

any educational opportunity”).

Gregory’s IEP was reasonably calculated to enable him to receive educational

benefits. In the context of a severely disabled child such as Gregory, “the ‘benefit’

conferred by the [IDEA] and interpreted by Rowley must be more than de minimis.”

Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 182 (3d Cir. 1988),

cert. denied, 488 U.S. 1030 (1989); see also Johnson v. Independent Sch. Dist. No.

4, 921 F.2d 1022, 1025-26 (10th Cir. 1990) (“[T]he ‘appropriate’ education required

by the Act is not one which is guaranteed to maximize the child’s potential.”), cert.

denied, 500 U.S. 905 (1991). The record supports the determination of both the IHO

and ALJ that Gregory benefitted from the Challenge program at Golden High School

and received an appropriate education. Therefore the district court did not err in

finding that the District provided Gregory with a free appropriate public education.

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 Gregory has never challenged the quality of the transition services he received.

He bases his appeal solely on the ground that he was denied transition services in a

specific location--his neighborhood school in Evergreen. As we held in Murray, the

IDEA does not give him a right to a placement at a neighborhood school. 51 F.3d

at 928-30 (citing with approval the district court opinion in this case for the

proposition that “the statutory preference for placement at a neighborhood school is

only that--and it does not amount to a mandate”). The IDEA only entitles Gregory

to an appropriate education, and the state “satisfies this requirement by providing

personalized instruction with sufficient support services to permit the child to benefit

educationally from that instruction.” Rowley, 458 U.S. at 203. Gregory received and

benefitted from such personalized instruction. The IDEA does not entitle him to

more.

Our holding that the district court did not err in finding that Gregory received

an appropriate education is not meant to suggest that school districts need not comply

with statutory requirements regarding the contents of an IEP. The lack of an explicit

statement of transition services certainly entitled Gregory to a new IEP. Because the

District’s procedural violation did not amount to a substantive deprivation, however,

there was no violation of Gregory’s right to an appropriate education. In the

absence of a violation of his right to an appropriate education, Gregory is not entitled

to compensatory education. Thus we do not reach the issue of whether compensatory

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services are available under the IDEA.

C. ADA Claims

Gregory argues that the District violated his rights under the ADA by refusing

to place him at Evergreen High School. He maintains that the ADA requires the

District to make whatever “reasonable modifications” are necessary to accommodate

Gregory at his neighborhood school and allows him to reject the placement assigned

to him by the District. The district court granted summary judgment in favor of the

District on these claims. Urban, 870 F. Supp. at 1569-70.

We review the district court’s grant of summary judgment on these claims de

novo. Murray, 51 F.3d at 928. Title II of the ADA states that “no qualified

individual with a disability shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services, programs, or activities of

a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. §

12132. Regulations promulgated under the ADA forbid public entities such as the

District from denying a disabled person “the opportunity to participate in services,

programs, or activities that are not separate or different, despite the existence of

permissibly separate or different programs or activities.” 28 C.F.R. § 35.130(b)(2).

The regulations require public entities to “make reasonable modifications in policies,

practices, or procedures when the modifications are necessary to avoid discrimination

on the basis of disability, unless the public entity can demonstrate that making the

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modifications would fundamentally alter the nature of the service, program, or

activity.” 28 C.F.R. § 35.130(b)(7).

Title II of the ADA adopts the substantive standards of section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. § 794. Office of Civil Rights Policy Letter,

20 IDELR 134, 135 (Oct. 7, 1993); see also 34 C.F.R. § 35.103(a) (“Except as

otherwise provided in this part, this part shall not be construed to apply a lesser

standard than the standards applied under title V of the Rehabilitation Act of 1973

. . . or the regulations issued by Federal agencies pursuant to that title.”). The

regulations promulgated under section 504 generally conform to the standards

established by the IDEA, 34 C.F.R. pt 104, App. A 373, and use substantially the

same language regarding a school district’s obligation to evaluate each disabled

child, create an IEP with parental input, and provide each disabled child with an

appropriate education. See 34 C.F.R. §§ 104.33, 104.35, 104.36. Thus we analyze

Gregory’s ADA claim by reference to section 504's standards, and Gregory’s claim

is valid only if he is entitled to a placement at Evergreen High School under section

504.

In Southeastern Community College v. Davis, 442 U.S. 397, 410-11 (1979),

the Supreme Court held that section 504 does not require affirmative action to

accommodate the disabled. In addition, courts in other circuits have held that section

504 does not require school districts to modify school programs in order to ensure

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neighborhood placements. See, e.g., Barnett v. Fairfax County Sch. Bd., 927 F.2d

146, 154-55 (4th Cir.) (holding that school district need not provide services at

neighborhood school when such services are available at another central location),

cert. denied, 502 U.S. 859 (1991); Schuldt v. Mankato Indep. Sch., 937 F.2d 1357,

1362-63 (8th Cir. 1991) (rejecting argument that Tenth Circuit’s holding in New

Mexico Ass’n for Retarded Citizens v. New Mexico, 678 F.2d 847, 855 (1982),

requires school districts to modify schools to accommodate disabled children already

receiving an appropriate public education), cert. denied, 502 U.S. 1059 (1992).

Relying on the similarity between the substantive and procedural frameworks

of the IDEA and section 504, see 34 C.F.R. § 300.340 et seq., 34 C.F.R. § 104.31 et

seq., we conclude that if a disabled child is not entitled to a neighborhood placement

under the IDEA, he is not entitled to such a placement under section 504. See Smith

v. Robinson, 468 U.S. 992, 1017 (1984) (noting that the IDEA and section 504 “are

built around fundamental notions of equal access to state programs and facilities”

and thus “their substantive requirements . . . have been interpreted to be strikingly

similar”); D.F. v. Western Sch. Corp., 921 F. Supp. 559, 573-74 (S.D. Ind. 1996)

(holding that when plaintiff fails to prove IEP violated the IDEA, claims based on

ADA and Rehabilitation Act must also fail).

Our decision in New Mexico Association for Retarded Citizens does not

change this result. In that case, we noted that “modifications of existing programs

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may be required where the financial burden would not be excessive and the

accommodation would enable handicapped children to realize the benefits of the

State’s educational program.” 678 F.2d at 855. We also stated that a federally-

funded education system may violate section 504 when the school system’s practices

“preclude the handicapped from obtaining system benefits realized by the non-

handicapped.” Id. at 853 (emphasis added). Thus section 504 requires

accommodation in a neighborhood school when disabled children cannot receive

educational benefits without accommodation; it does not require a school district to

modify its program in order to accommodate a single child in a neighborhood school,

especially if that child is already receiving educational benefits in another

environment. In light of the Supreme Court’s holding in Davis that section 504 does

not require affirmative action to accommodate the disabled, and our holding in

Murray that a disabled child does not have a right to attend her neighborhood school,

we conclude that the ADA does not entitle Gregory to attend his neighborhood

school.

D. Attorney’s Fees

We review the refusal to award attorney’s fees for abuse of discretion.

Corneveaux v. CUNA Mutual Ins. Group, 76 F.3d 1498, 1505 (10th Cir 1996).

Section 1415(e)(4)(B) of the IDEA allows district courts to award attorney’s fees “to

the parents or guardian of a handicapped child or youth who is the prevailing party.”

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Congress intended the term “prevailing party” to mean the same under §

1415(e)(4)(B) as it does under 42 U.S.C. § 1988. Beard v. Teska, 31 F.3d 942, 950

(10th Cir. 1994). Under § 1988, “a plaintiff ‘prevails’ when actual relief on the

merits of his claim materially alters the legal relationship between the parties by

modifying the defendant’s behavior in a way that directly benefits the plaintiff.”

Farrar v. Hobby, 113 S. Ct. 566, 573 (1992).

Gregory contends that he was the prevailing party in the administrative

proceedings. Gregory’s complaint before the IHO stated that the District violated

his right to a free appropriate public education by (1) not placing him at Evergreen

High School, (2) failing to assess his need for an extended school year, and (3)

failing to make IEP provision for transition services. Prior to the IHO hearing, the

District agreed to reconvene an IEP meeting to consider Gregory’s need for an

extended school year. In addition, the IHO and ALJ both remanded the case for

creation of a new IEP containing an explicit statement of transition services. Thus

Gregory prevailed as to these two issues: he received the relief he sought and that

relief materially altered the relationship between the District and him.

Our determination that Gregory was the prevailing party in the administrative

proceedings, however, does not end our inquiry. An award of attorney’s fees must

also be reasonable. Id. at 574-75. Whether an award of attorney’s fees is reasonable

depends, in part, upon the degree of success obtained by the plaintiff. Hensley v.

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Eckerhart, 461 U.S. 424, 436 (1983). Indeed, there are circumstances in which a

plaintiff who formally prevails “should receive no attorney’s fees at all.” Farrar, 113

S. Ct. at 575. In this case, Gregory also sought a placement at Evergreen High

School, but he was never awarded such a placement. Although Gregory was a

prevailing party in that he received relief on some of his claims, we cannot say that

he succeeded to the degree necessary to warrant an award of attorney’s fees. Thus,

we conclude that the district court did not abuse its discretion when it denied

Gregory’s request for attorney’s fees.

E. Conclusion

The district court correctly dismissed Gregory’s sixth and eighth claims for

lack of subject matter jurisdiction. In addition the district court did not err in

granting summary judgment on Gregory’s claim for compensatory education and his

ADA claim. Finally, the district court did not abuse its discretion when it denied

Gregory’s request for attorneys fees. Accordingly the judgment of the district court

is AFFIRMED.

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