February 2009

Case of the Month: Thompson R2-J School District v. Luke P. (10th Circuit)

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This 10th circuit case from Colorado tells a story that sounds familiar: At age 2, Luke is diagnosed with autism. In kindergarten through grade 2, he makes progress at school in many areas but his behavior problems at home are "especially severe." He is sometimes violent at home and in the community, has sleep problems and inappropriate toileting behavior. In the fall of Luke's third grade year, Luke's parents are unsuccessful in convincing the district that he needs residential placement due to lack of generalization of his skills from school to home. The parents give the district notice, unilaterally place him at the Boston Higashi School (remember Ash?), and request a due process hearing.

The parents prevail through both levels of Colorado's two tier hearing system (five day hearing and review process) and federal district court. The state level ALJ noted that Luke had achieved nearly a quarter of the goals and objectives on his IEP, "was making slow [but] steady progress toward others" and overall was advancing on his goals at school, but was unable to transfer his learned skills and use them outside of school. It was this "generalization deficiency" that warranted residential placement.

The 10th Circuit disagreed, stating: "Though one can well argue that generalization is a critical skill for self-sufficiency and independence, we cannot agree with appellees that IDEA always attaches essential importance to it." In other words, when a child's skills in the school setting do not generalize to the home, "other resources [not IDEA] must be looked to." (The court distinguishes Ash v. Lake Oswego SD, a 1991 case from Oregon requiring reimbursement for residential placement at the Higashi School, because in that case the student's "generalization deficiencies or regression tendencies were so severe that they essentially prohibited any learning or progress on the student's IEP goals.") (emphasis added)

In sum, "a school district is not required to provide every service that would benefit a student if it has found a formula that can reasonably be expected to generate some progress on that student's IEP goals."

The parents filed for U.S. Supreme Court review on December 19, 2008.

Lessons learned:

* The opinion notes that the school district officials "expressed openness to revising Luke's IEP to include the parents' proposed goals" and to working with the parents' private expert to improve their special education program. The opinion also notes the ALJ's finding that the district made a "monumental and genuine effort" to improve Luke's performance in a number of areas affected by his autism. The district did not abandon its efforts to assist Luke in generalizing skills in the face of the parents' request for residential placement. The opinion implies that the district carefully monitored and reported on the student's progress. We can all learn from this district's experience.