April 30, 2017

Colorado Gives: Disability Law Colorado Recognizes the Inherent Value of All People and Embraces Empowerment

Colorado Gives: CBA CLE Legal Connection will be focusing on several Colorado legal charities in the next few days to prepare for Colorado Gives Day, December 6, 2016. These charities, and many, many others, greatly appreciate your donations of time and money.

dlc-630x160Disability Law Colorado (formerly known as The Legal Center for People with Disabilities and Older People) was created in 1976 out of the dream of a small group of parents who came together to secure equal rights for their children with developmental disabilities who were living in state institutions. These parents wanted a better life for their children and believed that all people with disabilities deserved the right to live full and rewarding lives. Disability Law Colorado’s early successes included requiring school districts to pay for children’s education in public schools, allowing children with severe disabilities to attend school for the first time. Disability Law Colorado also succeeded in preventing sterilization of people with developmental disabilities and preventing workplace discrimination against people with disabilities.

In 1977, the governor designated Disability Law Colorado to be Colorado’s Protection and Advocacy (P&A) System for people with developmental disabilities. Today, Disability Law Colorado is recognized as a leader in the National Disability Rights Network made up of Protection and Advocacy programs from all the states and territories.

For Colorado Gives Day, Disability Law Colorado has a $15,000 fundraising goal. By donating through Colorado Gives, your gift will go further thanks to a $1 million dollar incentive fund. Click here to donate.

Tenth Circuit: No Fourth Amendment Violation When Officer Arrested 11-Year-Old Special Education Student

The Tenth Circuit Court of Appeals issued its opinion in J.H. v. Bernalillo County on Friday, November 27, 2015.

J.P. was an 11-year-old special needs student in a special education classroom when a school resource officer, Deputy Sharkey, saw her kick her teacher. Deputy Sharkey arrested J.P. and handcuffed her, then transported her to a juvenile detention facility. J.P.’s mom, J.H., sued Deputy Sharkey and the Bernalillo County Sheriff’s Office under 42 U.S.C. § 1983, alleging violations of the Fourth Amendment, the Fourteenth Amendment’s Due Process Clause, and the Americans with Disabilities Act. The district court dismissed the due process claims and granted summary judgment to Deputy Sharkey and the county on the Fourth Amendment and ADA claims. J.H. appealed.

On appeal, J.H. contended the district court erred in granting summary judgment because Deputy Sharkey lacked probable cause and used excessive force in arresting J.P. The Tenth Circuit disagreed, noting that J.P. assaulted her teacher by kicking her and that provided probable cause for the arrest. The Tenth Circuit noted that J.H.’s argument was invalid because Deputy Sharkey could lawfully arrest J.P. after observing her commit the crime of kicking her teacher. J.H. argued the crime could not constitute a felony because J.P. was a minor at the time, but did not deny that the kick was unlawful. The Tenth Circuit found this fatal to J.H.’s arguments.

J.H. also contended that Deputy Sharkey used excessive force by handcuffing J.P., but the Tenth Circuit again disagreed, finding nothing excessive about the use of handcuffs. The Tenth Circuit noted that once he made the arrest, Deputy Sharkey was free to protect himself by restricting J.P.’s freedom of movement. The Tenth Circuit similarly rejected J.H.’s ADA claims, finding that J.P. never requested an accommodation so Deputy Sharkey could not have erred in failing to provide one. The Circuit likewise found no error in taking J.P. to the juvenile detention center instead of waiting for her mother to arrive at the school.

The Tenth Circuit next addressed J.H.’s Fourteenth Amendment Due Process claims, which were premised on the same arguments as the Fourth Amendment claims. The Tenth Circuit found that the district court properly dismissed the Fourteenth Amendment claims because J.H.’s factual allegations did not implicate the Fourteenth Amendment.

Finally, the Tenth Circuit affirmed the district court’s grant of summary judgment on J.H.’s ADA claims. J.H. alleged that Deputy Sharkey discriminated against J.P. by making the arrest based on manifestations of her disability and failing to make reasonable accommodations during the arrest. The Tenth Circuit denied that Deputy Sharkey had reason to be aware of J.P.’s disability and reasoned that since J.P. did not request an accommodation, Deputy Sharkey did not err in failing to provide one.

The Tenth Circuit affirmed the district court.

Tenth Circuit: IDEA Requires Exhaustion of Administrative Remedies Prior to Bringing Federal Claims

The Tenth Circuit Court of Appeals issued its opinion in Carroll v. Lawton Independent School District No. 8 on Tuesday, November 10, 2015.

AKC, a child with autism who has limited ability to communicate clearly, was in third grade when her parents discovered that her special education teacher, Vickie Cantrell, had been abusing her at school, including giving her a “wedgie” that caused AKC’s underwear to rip and placing her in a dark closet as punishment. As a result of Ms. Cantrell’s abuse, AKC lost academic abilities, refused to get out of the car at school, and developed severe behavioral problems.

AKC’s parents, Ted and Bella Carroll, filed suit, asserting numerous state law claims, including negligence, intentional infliction of emotional distress, assault, battery, conspiracy, and violation of due process under the Oklahoma Constitution. The Carrolls also brought federal claims under the ADA, § 504 of the Rehabilitation Act, and § 1983. All defendants moved to dismiss. The district court determined that the Carrolls’ ADA and Rehabilitation Act claims required exhaustion of administrative remedies for the alleged educational injuries as required by the Individuals with Disabilities Education Act (IDEA), and it dismissed those claims. The district court did not find an exhaustion requirement as to the § 1983 claims and allowed the Carrolls to amend those claims and others as against the school district and Ms. Cantrell.

The Carrolls amended their complaints to allege additional facts against the school district and Ms. Cantrell, and defendants again moved to dismiss. The district court again evaluated the Carrolls’ § 1983 claims and concluded that the complaint alleged educational harms, requiring exhaustion of administrative remedies under IDEA. The district court dismissed the Carrolls’ amended complaint alleging § 1983 claims and declined to exercise supplemental jurisdiction over the state law claims, thereby dismissing the complaint. The Carrolls appealed.

The Carrolls claimed the district court erred in dismissing their claims for failure to exhaust administrative remedies as required by IDEA. They contend their claims are not subject to IDEA’s exhaustion requirement or, alternatively, the district court abused its discretion in denying them leave to allege additional facts showing exhaustion. The Tenth Circuit disagreed. The IDEA creates a mandatory administrative framework for any complaints about the identification, evaluation, education, or placement of the child, which begins with an impartial due process hearing and continues with an appeal to the state educational agency. The Tenth Circuit noted that the focus of whether a claim requires exhaustion is on the source and nature of the injuries, not the requested remedy. The Tenth Circuit evaluated the Carrolls’ claims and found they alleged educational injuries, including that AKC suffered educational setbacks, refuses to go to school and becomes upset when she enters the school, and requires tutoring to restore her to her previous academic level. The Tenth Circuit found that these injuries were unambiguously educational in nature and therefore the IDEA’s exhaustion requirements applied.

The Tenth Circuit rejected the Carrolls’ arguement that the IDEA exhaustion requirement applies only to purely educational claims, noting that it has long recognized the close relationship between classroom discipline and instruction. The Tenth Circuit also rejected the Carrolls’ claim that they should be excused from the exhaustion requirement because it would fail to supply relief and would be futile. The Tenth Circuit characterized that argument as a restatement of their claims seeking relief from Ms. Cantrell’s conduct, and found that their request for only damages did not negate the requirement of pursuit of administrative remedies. The Tenth Circuit also noted that its resolution in favor of the district court’s conclusion also resolved the Carrolls’ claim that the district court erred in declining to exercise jurisdiction over the state law claims. The Tenth Circuit found no error in the district court’s dismissal.

The Carrolls also argued that the district court abused its discretion in not allowing them to further amend their complaint to show their exhaustion attempts. The Tenth Circuit first found that the Carrolls failed to formally request leave to amend, instead asking for leave to amend as an alternative to dismissal. The Tenth Circuit further found that the Carrolls failed to allege with specificity the additional facts that would be included in an amended complaint. Instead, the Carrolls set forth only categories of allegations that could be pleaded, not specific facts supporting the allegations. The Tenth Circuit found no abuse of discretion.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Mediation Not Enough to Exhaust Administrative Remedies Under IDEA

The Tenth Circuit Court of Appeals issued its opinion in A.F. v. Espanola Public Schools on Tuesday, July 15, 2015.

Christine B. is the mother of A.F., a child with dyslexia who attended Espanola Public Schools (EPS) in New Mexico. In elementary school, she received Title I services, but made only minimal progress. In middle school, A.F. continued to struggle with language arts, math, and science, and failed half her classes. In 2010, although she was old enough to attend high school, EPS held A.F. back in eighth grade. Halfway through the year, however, she was directed to attend the local high school, where she was given remedial classes in the first half of the day and sat in the library, receiving no direction or tutelage, for the second half of the day. At some point during the spring semester that year, EPS changed A.F.’s schedule and placed her in academic classes for the second half of the day, which she failed. Christine B. asked EPS for evaluation and help for A.F., but EPS said it could be three to six months before the evaluation would occur. A.F. continued to fail her classes.

In February 2012, A.F. filed a due process hearing complaint through Christine B., alleging EPS had failed to identify or evaluate A.F. under the Individuals with Disabilities Education Act (IDEA) or Section 504 of the Rehabilitation Act, and further alleging EPS had violated the IDEA by failing to timely and comprehensively evaluate A.F. in all areas of need, failing to identify A.F. as eligible for special education services, failing to develop an individualized education program (IEP) for A.F., and failing to provide Christine B. with information required in connection with her evaluation requests. In May 2012, Christine B. and the district resolved the due process complaint by entering into a mediation agreement that purported to resolve all claims under the IDEA. In August 2012, A.F. by and through Christine B. filed in a complaint alleging violation of federal disability discrimination laws pursuant to Section 504 and the ADA and violation of her Fourteenth Amendment due process rights. The complaint was later removed to federal district court, and the district court dismissed her suit due to failure to exhaust administrative remedies. Christine B. appealed.

The Tenth Circuit majority opinion affirmed the district court. Interpreting 20 U.S.C. § 1415(l) to mean that Christine B. was required to first exhaust the procedures in subsection (f) and (g) of that section, the majority concluded that her mediation pursuant to subsection (e) was not enough to exhaust administrative remedies. The majority evaluated the plain language of the statute and Congressional intent in so concluding. The dissent, however, authored by Chief Judge Briscoe, disagreed with the majority’s characterization of Congressional intent, and would have found that mediation under subsection (e) was enough to fulfill the section’s exhaustion requirements. The dissent raised compelling statutory interpretation arguments as well, noting “why would Congress, after creating a framework that quite clearly encourages resolution of IDEA claims by various means, force a claimant to avoid resolution of her claim by mediation or preliminary meeting and lose at both the due process hearing and administrative appeal stages? Doing so would effectively render superfluous the mediation and preliminary meeting provisions of the statute.”

The majority panel of the Tenth Circuit affirmed the district court.

Tenth Circuit: “Some Educational Benefit” Required for Free and Appropriate Public Education Under IDEA

The Tenth Circuit Court of Appeals issued its opinion in Endrew F. v. Douglas County School District on Tuesday, August 25, 2015.

Endrew “Drew” F. has autism. He was enrolled in Douglas County Public Schools, but in 2009, after a particularly rough fourth grade year, his parents rejected the district’s proposed Individualized Education Plan (IEP) for the fifth grade year and instead enrolled him in Firefly Autism, a private school in which he is thriving. Drew’s parents submitted a tuition reimbursement request to the Douglas County School District, seeking reimbursement under the Individuals with Disabilities Education Act (IDEA) because the school had failed to provide Drew with a free appropriate public education (FAPE). Drew’s parents argued that because Drew was making minimal progress and had escalating behavioral issues, he was being denied a FAPE. The district declined to pay Drew’s tuition at the private school.

Drew’s parents sought a due process hearing with an ALJ, who ultimately found that Drew had received some educational benefit in the public schools and therefore was receiving a FAPE. The federal district court affirmed the ALJ’s finding, and Drew’s parents appealed to the Tenth Circuit.

The Tenth Circuit first evaluated the strictures of the IDEA, noting that the Act does not prescribe a substantive level of achievement for the education to be considered appropriate. Under Supreme Court and Tenth Circuit precedent, the individual need only show “some educational benefit.” The Tenth Circuit then addressed the IDEA provisions which allow parents to seek tuition reimbursement from a district, noting that parents who take unilateral action do so at their own financial risk. The Tenth Circuit next set forth the two-step process for determining whether a district provided a student with a FAPE: (1) whether the district complied with the IDEA’s procedural requirements, and (2) whether the IEP is reasonably calculated to enable the child to receive educational benefits.

Turning to the parents’ procedural arguments, the Tenth Circuit rejected the parents’ argument that they were not adequately informed of Drew’s progress because although the notes on the IEP were inadequate, there was record support that Drew’s parents communicated with the special education teacher regularly. The parents also argued that the district failed to provide a FAPE because it did not address Drew’s escalating behavioral difficulties, but the Tenth Circuit again rejected this argument, finding the district had requested a behavioral assessment but it was scheduled for after the parents pulled Drew from the district and therefore never occurred.

The Tenth Circuit next turned to the parents’ substantive arguments regarding Drew’s fifth grade IEP. The parents contended that because the fifth grade IEP was similar in all material aspects to previous IEPs, Drew’s lack of progress on those past IEPs was dispositive of whether the fifth grade IEP was reasonably calculated to lead to educational benefit. The parents also contended that the ALJ failed to consider the impact of Drew’s escalating behavioral problems in determining the IEP was reasonably calculated to provide Drew an educational benefit. Finally, the parents asserted that recent Tenth Circuit case law changed the standard by which the IEP should have been evaluated from “some educational benefit” to “meaningful educational benefit.”

The Tenth Circuit first disagreed with the parents’ contention that its recent case law signaled a shift in precedent, finding that the neither the previous panel nor the current panel could change the precedent absent en banc review or a new Supreme Court decision. The Tenth Circuit also noted that the distinction between “some educational benefit” and “meaningful educational benefit” was semantic. The Tenth Circuit found no error in the ALJ’s reliance on the “some educational benefit” standard. The Tenth Circuit then evaluated whether Drew progressed on the prior IEPs and found that he did. Although it was “without question a close case,” the Tenth Circuit found that Drew received more than a de minimus benefit and therefore affirmed the ALJ. The Tenth Circuit similarly rejected the parents’ contentions that the district failed to address Drew’s escalating behavioral concerns or the ALJ ignored them. The Tenth Circuit found record support that the district began implementing a behavioral intervention plan before the parents pulled Drew from the district.

The district court and ALJ were affirmed.