NATHAN M., a minor, by and through his parents and next friends, AMANDA M., Plaintiffs - Appellants,
HARRISON SCHOOL DISTRICT NO. 2, Defendant-Appellee. COLORADO ASSOCIATION OF SCHOOL BOARDS; KANSAS ASSOCIATION OF SCHOOL BOARDS; NATIONAL SCHOOL BOARD ASSOCIATION; NEW MEXICO SCHOOL BOARDS ASSOCIATION; OKLAHOMA STATE SCHOOL BOARDS ASSOCIATION; UTAH SCHOOL BOARDS ASSOCIATION; WYOMING SCHOOL BOARDS ASSOCIATION, Amici Curiae.
from the United States District Court for the District of
Colorado (D.C. No. 1:18-CV-00085-JLK)
D. Robinson, Spies, Powers & Robinson, P.C., Denver,
Colorado, for Plaintiff-Appellant.
R. Stanek (William K. Dude with him on the briefs), Anderson,
Dude & Lebel, P.C., Colorado Springs, Colorado, for
Francisco M. Negrón, Jr., Chief Legal Officer,
National School Boards Association, Alexandria, Virginia, and
W. Stuart Stuller, Caplan and Earnest, LLC, Boulder,
Colorado, filed a brief for Amici Curiae National School
Boards Association, Colorado Association of School Boards,
Kansas Association of School Boards, New Mexico School Boards
Association, Oklahoma State School Boards Association, Utah
School Boards Association, and Wyoming School Boards
Association, in support of Harrison School District No. 2.
TYMKOVICH, Chief Judge, PHILLIPS, and McHUGH, Circuit Judges.
McHUGH, CIRCUIT JUDGE
case arises under the Individuals with Disabilities Education
Act ("IDEA" or the "Act"). Amanda M.
("Parent"), the mother of Nathan M., a child with
autism, challenges an Individualized Education Program
("IEP") developed with Harrison School District No.
2 ("the District") that proposed removing Nathan
from Alpine Autism Center (a private, autism-only facility)
and placing him in Otero Elementary School (a public school).
Nathan's mother contends the school district did not
comply with numerous procedural requirements in developing
the IEP and that the IEP itself failed to offer Nathan a
"free appropriate public education"
("FAPE") as required by the Act.
the IEP at issue governed a schoolyear that has passed, and
because the various IEP deficiencies alleged by Parent are
not capable of repetition yet evading review, the case is
M. is a child diagnosed with autism spectrum disorder
("ASD") and attention deficit hyperactivity
disorder ("ADHD"). As a child with a disability,
Nathan is entitled to a FAPE under the IDEA. Steven R.F.
ex rel. Fernandez v. Harrison Sch. Dist. No. 2, 924 F.3d
1309, 1310 (10th Cir. 2019); see 20 U.S.C. §
1412(a)(1)(A) (requiring states to provide a free appropriate
public education to children with disabilities in order to
qualify for federal funding). The IDEA guarantees the
provision of a FAPE by mandating the development of an IEP:
"a comprehensive plan prepared by a child's 'IEP
team' (which includes teachers, school officials, and the
child's parents)" through which "special
education and related services are 'tailored to the
unique needs' of a particular child." Endrew F.
ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137
S.Ct. 988, 994 (2017) (quoting Bd. of Ed. of Hendrick
Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 181
2012, in accordance with an IEP developed with the District,
Nathan has attended the Alpine Autism Center
("Alpine") in Colorado Springs to receive special
education supports and services in lieu of a public school.
Alpine is a private program serving students with autism
through a methodology known as "Applied Behavior
Analysis" ("ABA"), administered by employees
supervised by Board Certified Behavior Analysts
("BCBAs") rather than certified teachers.
April 2014, the District proposed removing Nathan from Alpine
and placing him in a public elementary school, Otero
Elementary ("Otero"). Nathan's parents objected
to this decision and filed a complaint with the Colorado
Department of Education. A Colorado State Complaint Officer
("SCO") found that the District had predetermined
to remove Nathan from Alpine, thereby denying his parents the
opportunity to meaningfully participate in the IEP process.
The District declined to challenge this finding.
therefore remained at Alpine, and in February 2016 the
District began a reevaluation of Nathan for the purpose of
developing his new IEP. The District convened a
pre-evaluation meeting attended by Parent, Parent's
advocate, district employees, and various specialists in
occupational therapy, speech, mental health, and
administration. Parent provided an agenda for the meeting and
received answers to her questions from members of the
assessment team. No one from Alpine attended the meeting, and
neither the District nor Parent invited anyone from Alpine to
attend. At this pre-evaluation meeting, Parent consented to a
series of assessments related to Nathan's
"cognition, academic skill development,
social/emotional/behavioral development, adaptive skill
development (geared to ASD), speech/language development,
motor skills, and sensory processing." App. Vol. 1 at
District held its first IEP team meeting on April 19, 2016.
Parent, her advocate, and other members of the IEP team
attended, but no representative from Alpine did. The IEP team
confirmed Nathan's continuing eligibility for a FAPE as a
child with ASD and fielded Parent's questions over
the course of two and a half hours. After the meeting
concluded, Parent had more questions about Nathan's
evaluation, so a school district official held an individual
meeting with her, lasting over two hours, during which the
official attempted to answer Parent's questions.
second two-and-a-half hour IEP team meeting occurred on May
19, 2016. Although Parent invited members of the Alpine staff
to attend, they declined to do so. Parent provided an agenda
for this meeting and expressed her view that the team would
have made more progress had Alpine staff been in attendance.
The IEP team addressed Nathan's "reevaluation and
what progress he would need to show to be able to succeed in
a general education classroom." App. Vol. 1 at 42.
third meeting, on September 9, 2016, the IEP team worked from
an agenda created by a neutral facilitator designed to
address Parent's issues with Nathan's IEP, as well as
input from the District. Members of Alpine attended and
"had further discussion regarding the results of the
reevaluation as well as [Nathan's] present levels at
Alpine." App. Vol. 1 at 43. The meeting lasted three
team met for a fourth time on November 11, 2016. Parent, two
of Parent's advocates, representatives from Alpine, and
District staff attended the three-hour meeting, which was
more "contentious and emotional than other
meetings." App. Vol. 1 at 43-44. After a discussion of
Nathan's current levels of performance, the team
formulated goals for Nathan and acceded to Parent's
request for a one-on-one paraprofessional aide to support
Nathan's academic and behavioral needs. Parent also
requested an Independent Educational Evaluation
("IEE") for Nathan because, in her view, the
District's evaluation was not adequate. A fifth and final
meeting "convened on December 13, 2016, and lasted more
than four hours." App. Vol. 1 at 44. All IEP team
members attended, along with employees of Alpine. The team
updated Nathan's educational goals, responded to
Parent's questions, and discussed the comparative
advantages and disadvantages of placing Nathan at Alpine or
District then proposed placing Nathan at Otero, within
Otero's Autism Program. At Otero, Nathan would be
provided a full-time, one-on-one paraprofessional and
"extensive accommodations and modifications addressed to
his unique educational needs." App. Vol. 1 at 45. Nathan
would not be transitioned to Otero immediately, but
"would be supported during the initial transition from
Alpine with a blending of his day at Alpine and Otero."
App. Vol. 1 at 45. Depending on Nathan's success within
Otero's Autism Program, Nathan would eventually join
Otero's Communications and Social Development program
"geared toward students on the higher functioning end of
the autism spectrum." ...