The opinion of the court was delivered by: J. Thomas Marten, Judge
This is an action under the Individuals with Disabilities Education Act (IDEA), based on the assignment of the plaintiff M.M. to attendance at Prairie View High School in Prairie View, Kansas. The plaintiff also brings claims under the Rehabilitation Act and the Americans with Disabilities Act. The defendant Unified School District Number 368 has moved for summary judgment.
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).
In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
Plaintiff M.M. is an eighteen year-old child of Kathy and Wesley Moore. He was 17 years-old at the filing of this action. He lives in Paola, Kansas with his mother.
M.M. has Downs Syndrome. His abilities include:
* Operates a computer, mouse, keyboard; internet, save files, delete files, and send and receive e-mail.
* Reads the newspaper and books on wrestling and boxing.
* Keeps up with current events in the Middle East.
* Has taken guitar lessons and plays tambourine, maracas, and drums.
* Mows the lawn and operates a weed-eater without supervision.
* Is independent with respect to meals, eating, grooming, and hygiene.
* Active in Boy Scouts and has achieved the rank two below Eagle, which he has accomplished with only reasonable accommodation of verbally giving required reports.
* Has attained the rank of "blue belt""in karate class, participating with non-disabled peers without the need for accommodation.
* Has high personal expectations to attend college, be a firefighter, get married, live on his own.
M.M. began the 2007-2008 school year as a Junior in high school.
Defendant USD 368 is a school district in Kansas. It provides special education and related services to students with IEPs by contract with the East Central Kansas Special Education Cooperative (ECKSEC). ECKSEC was created, by contract, to provide services to USD 368 and several other school districts, and is not a separate legal entity from USD 368. ECKSEC does not have its own employees and buildings; it provides special education and related services to students using employees and facilities of USD 368 and other school districts. It provides special education to the students in eight school districts, located in Miami, Linn, Franklin, and Anderson Counties, and in 43 school buildings although not all services are provided in each district or building
The delivery of special education services through a cooperative program among multiple school districts such as ECKSEC is an accepted method in the State of Kansas and other states, because it is an economically feasible way to deliver mandated services to special education students in certain communities.
The Level program serves children from kindergarten through graduation. It is designed for students who benefit more from a functional educational approach than a strictly academic one. Level programs are administered through ECKSECand building administrators. Each student's IEP team determines eligibility. Level programs are divided into four, age-specific levels, each offered at a different location in the district:
Level I K - 2nd grades Cottonwood Elementary School Level II 3rd - 5th grades Sunflower Elementary School Level III 6th - 8th grades Paola Middle School Level IV 9th - 12th grades Prairie View High School.
Prairie View High School is located in La Cygne, Kansas, and is the only high school in the eight school districts that has the Level IV Level Program.
The use of a "cluster" or "Level" system is an accepted method of delivering special education services in Kansas. The benefit of providing services in this format lies in the efficiency and effectiveness of such delivery system, which permits the District to also provide "wrap around" services such as nursing, OT/PT, adaptive physical education, speech and language. The system is an accepted method of delivering needed support and services, including special education services, to enable a student to be successful and to meet that students needs. In doing so, there is no assumption that a general education environment is the appropriate service delivery method and may often lead to a more restrictive environment because of the need for adult supervision.
The plaintiff seeks to controvert this fact by asserting that elsewhere in Kansas, children with learning disabilities successfully participate in general education classes. However, the cited evidence merely shows that an alternative exists and is used in Kansas schools. It does not controvert the evidence provided by defendant that the "cluster" or "Level" system is an accepted method of delivering special education services for Kansas students.
Prairie View High School has a blend of traditional and special education students. It serves the communities of La Cygne, Parker, and Fontana. It has an enrollment of approximately 330 students. Like Paola High School, Prairie View has classrooms, a lunch room, gymnasium, and library, all of which are open to all students of the school and provide M.M. an opportunity to integrate with the traditional age peer students. It is a traditional high school in every sense and just happens to host the Level IV program. The Level IV program is an integral part of Prairie View High School and, therefore, it encourages M.M. to interact with and be a part of the traditional students at the School. His classes include one regular education class, Introduction to Agriculture.
At Prairie View High School, special education services specified in each student's IEP are provided. General education class participation is decided on an individual basis based on ability. Special education services, other than the Level Program services, are available to students in all of the schools in the eight school districts, although not all services are available in all schools.
M.M. attended elementary and junior high schools operated by USD 368 in Paola, Kansas. While there, M.M. took part in general education classes, and was provided special education services in the same building. He was placed in the Level Program in junior high school.
On July 11 and 12, 2002, a Due Process hearing was conducted regarding an IEP for M.M. On September 16, 2002, the Hearing Officer issued his decision which resulted in a determination in favor of USD 368. On November 12, 2002, a Reviewing Officer sustained the Hearing Officer's Decision. M.M.'s parents then filed suit against the USD 368 and requested a review of that decision by the Miami County, Kansas District Court.
On March 10, 2004, the parents and the District entered into an agreement which placed M.M. in the Paola Middle School Level III program. The plaintiff attempts to controvert this fact by arguing that the agreement may have resulted in such a placement, but the language of the agreement itself specifies that M.M. would be placed in a specific course, rather than generally providing that the placement was with the Level program. However, the plaintiff stipulated in the Pretrial Order that the parents and the District "entered ...