May 19, 2019

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.

Colorado Supreme Court: “Negative Factor” Regarding School Funding Does Not Conflict with Amendment 23

The Colorado Supreme Court issued its opinion in Dwyer v. State on Monday, September 21, 2015.

Constitutional Interpretation—Amendment 23—Public School Finance Act of 1994—Negative Factor.

In this original proceeding, the Supreme Court considered the legality of the “negative factor,” a legislative enactment that operates to reduce education funding across all Colorado school districts. Plaintiffs argued that the negative factor is unconstitutional because it violates Amendment 23, a constitutional provision requiring annual increases to “statewide base per pupil funding.” The Court concluded that plaintiffs’ complaint misconstrued the relationship between the negative factor and Amendment 23. By its plain language, Amendment 23 only requires increases to 20 statewide base per pupil funding, not to total per pupil funding. The Court therefore held that the negative factor does not violate Amendment 23. Accordingly, the Court made its rule to show cause absolute, and it remanded the case to the trial court with instructions to dismiss plaintiffs’ complaint.

Summary and full case available here, courtesy of The Colorado Lawyer.

Community Action Network School Supply Drive Starts July 21!

School Supply Drive Flyer(1)Each year, the Community Action Network holds a school supply drive to benefit the Denver Public Schools Educational Outreach Program, which provides assistance to homeless children in the Denver Public School System, including school supplies, breakfast and lunch assistance, uniforms, and more.

This year’s school supply drive starts Monday, July 21, 2014 and will run through Friday, August 1, 2014. Barrels for school supply donations have been set up in the lobby of the CBA/DBA and CLE offices at 1900 Grant Street on the 3rd and 9th floors. Donations may be dropped off from Firms may also participate in the drive by collecting school supplies in easy-to-carry boxes at their offices; Ricoh will pick up the boxes the week of August 4.

Items needed for this year’s drive include:

  • Backpacks of all sizes;
  • Pencils, pens, crayons, and markers;
  • Binders, notebooks, folders, and paper;
  • Scissors, rulers, staplers, staples, glue, and glue sticks;
  • Pencil cases;
  • Scientific calculators, compasses, protractors, and geometry sets;
  • Dictionaries and thesauruses;
  • Navy and red polo shirts in all kids’ sizes;
  • And more!

For information on firm donations, click here or contact Alexa Drago or Kate Schuster.

Colorado Supreme Court: Public School Financing System Complies with Colorado Constitution

The Colorado Supreme Court issued its opinion in Lobato v. State of Colorado, Board of Education on Tuesday, May 28, 2013.

Education Finance—Constitutional Interpretation.

The Supreme Court held that the public school financing system complies with the Colorado Constitution, because it is rationally related to the constitutional mandate that the General Assembly provide a “thorough and uniform” system of public education. It also affords local school districts control over locally raised funds and therefore over “instruction in the public schools.” Accordingly, the Court reversed the trial court’s finding that the public school financing system is unconstitutional.

Summary and full case available here.

Tenth Circuit: Students Have Standing to Challenge Kansas Act Funding Public Schools

The Tenth Circuit issued its opinion in Petrella v. Brownback on Thursday, October 18, 2012.

The Kansas Constitution requires the Kansas legislature to make suitable provision for finance of the educational interests of the state. In 2005, the Kansas Supreme Court determined the then-current school finance system (the Act) violated the state constitution because it failed to make suitable provisions for funding public schools. Among the Act’s constitutional shortcomings were an overall funding of public education and a wealth-based disparity in public education funding based on difference in assessed property values from district to district. At the same time, the Kansas Supreme Court upheld the Act against an equal protection challenge, finding the Act did not violate either the Kansas or United States constitutions on equal protection grounds.

The Act in part authorized districts to adopt a “Local Option Budget” (LOB), which permitted a district to raise extra money by levying additional property taxes beyond the minimum. The LOB was capped at 31% of the district’s State Financial Aid entitlement. Plaintiffs, students and parents of students, filed this action claiming the LOB cap violated their federal Equal Protection and Due Process rights by effectively reducing their educational services.

The district court dismissed the case for lack of standing, concluding the LOB cap was not severable from the rest of the Act. Therefore, a finding that the LOB cap was unconstitutional would result in the invalidation of the entire Act, leaving the school board unable to levy any taxes at all. In other words, a favorable decision striking the cap could not redress plaintiffs’ alleged injury. This appeal followed.

The three requirements of standing are: injury-in-fact, causation, and redressability. The Tenth Circuit found that Appellants carried their burden to establish the three requirements of Article III standing. The Court stated that Appellants’ standing did not depend on their certain ability to raise funding from within the district. Instead, Appellants had standing because they alleged a violation of their right to equal protection that was fairly traceable to the challenged statute, and that would be redressed by a favorable decision on the merits, even if such a decision resulted in the wholesale invalidation of the Act.

Accordingly, the Tenth Circuit REVERSED and REMANDED for consideration on the merits.