Endrew F. v. Douglas County School District RE-1

Filing 56

ORDER denying #47 Motion of Former Officials of the U.S. Department of Education, The Judge David L. Bazelon Center for Mental Health Law, The National Down Syndrome Congress, The Autistic Self Advocacy Network, The ARC of the United States, and The ARC of Colorado, To Participate as Amicus Curiae in Support of Petitioner, Endrew F., by Judge Lewis T. Babcock on 11/16/2017. (ebuch)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE
Civil Action No. 12-cv-02620-LTB
Endrew F., a minor, by and through his parents and next friends,
JOSEPH & JENNIFER F.,
v.

Petitioner,

DOUGLAS COUNTY SCHOOL DISTRICT RE 1,
Respondent.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter involves the review of a decision from the Office of
Administrative Courts denying Petitioner’s claim under the Individuals with
Disabilities Education Act (the “IDEA”), 20 U.S.C. §§1400 and 34 C.F.R. §§300.500,

et. seq. Petitioner, Endrew F., through his parents, Joseph and Jennifer F., sought
reimbursement for private school tuition and transportation costs from Respondent,
Douglas County School District RE 1 (the “District”) pursuant to 20 U.S.C.
§1412(a)(10)(C)(ii) and 34 C.F.R. §300.148( c ). The matter is before me on remand
from the Tenth Circuit, see Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 694 F. App’x
654 (10th Cir. Aug. 2, 2017)(unpublished), following remand from the United States
Supreme Court. See Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1,
____ U.S. ____, 137 S. Ct. 988, 197 L. Ed. 2d 335 (Mar. 22, 2017).
My task on remand is to apply the legal standard now articulated by the
Supreme Court to assess, in a “fact-intensive exercise,” whether the District has

met its substantive obligation under the IDEA by offering Petitioner “an IEP
reasonably calculated to enable a child to make progress appropriate in light of the
child’s circumstances.” Endrew F. v. Douglas Cty., supra, 137 S. Ct. at 999-1000
(further ruling that when a child is unable to fully integrate into the regular
classroom the “educational program must be appropriately ambitious in light of his
circumstances, just as advancement from grade to grade is appropriately ambitious
for most children in the regular classroom”).
At issue here is a motion in which various groups (the “Amici”) seek to
participate as amicus curiae in support of the Petitioner. The motion is entitled
Motion of Former Officials of the U.S. Department of Education, The Judge David
L. Bazelon Center for Mental Health Law, The National Down Syndrome Congress,
The Autistic Self Advocacy Network, The ARC of the United States, and The ARC of
Colorado, To Participate as Amicus Curiae in Support of Petitioner, Endrew F. [Doc
#47] The Amici have filed their proposed amicus curiae brief as an attachment to
their motion to participate. [Doc #47-1] Petitioner has apparently indicated that he
does not oppose this motion, but the District has filed a Brief in Partial Opposition
in which it requests that I grant the motion for leave to file, “but give the Amici’s
substantive arguments little to no weight in the dispute between the parties.” [Doc
#51] I have concluded, however, that the Amici have not presented information in
their brief that will be of assistance to the Court and, as such, I deny the Amici’s
motion seeking leave to participate as amicus curiae in support of the Petitioner.

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I. LAW
No Federal Rule of Civil Procedure governs amicus curiae participation in a
district court case, so Courts commonly look for guidance in Federal Rule of
Appellate Procedure 29, which governs the filing of such briefs in the United States
Circuit Courts of Appeal. Under Appellate Rule 29(b), a motion seeking leave to
participate as amicus curiae must indicate the reason why an amicus curiae brief is
desirable and why the matters asserted are relevant to the disposition of the case.

See Fed. R. App. P. 29(a)(3)(B).
In determining whether to accept an amicus curiae brief, courts consider,
among other things: (1) whether the proposed amicus is a disinterested entity; (2)
whether there is opposition to the entry of the amicus; (3) whether counsel is
capable of making arguments without the assistance of an amicus; (4) the strength
of the information and argument presented by the potential amicus curiae’s
interests; and (5) perhaps most importantly, the usefulness of information and
argument presented by the potential amicus curiae to the court. United States v.

Bd. of Cty. Commissioners of the Cty. of Otero, 184 F. Supp. 3d 1097, 1115 (D.N.M.
2015), aff’d sub nom. United States v. Bd. of Cty. Commissioners of Cty. of Otero,
843 F.3d 1208 (10th Cir. 2016), cert. denied sub nom. Bd. of Cty. Comm’s of Otero

Cty., New Mexico v. United States, No. 16-1351, 2017 WL 1881715 (U.S. Oct. 2,
2017)(citations and quotations omitted). A district court exercises wide discretion
in deciding whether to grant or deny leave to file an amicus curiae brief. Id. at

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1115-6 (citing Wildearth Guardians v. Lane, 2012WL10028647 (D.N.M. 2012)).
II. MOTION
As an initial matter, I agree with the District that this motion does not falter
on the qualifications of the Amici, or whether they take a strong interest in the
case. The District also does not dispute that the motion for leave to file an amicus

curiae brief is timely. Rather, the question is the usefulness of information and
argument presented by the potential amicus curiae brief to the matter before me
here.
In their brief, the Amici assert that the new standard articulated and
adopted by the Supreme Court for assessing whether a student’s Individual
Education Plan (“IEP”) is sufficient to provide him or her with a free appropriate
public education under the IDEA, in Endrew F. v. Douglas Cty., supra, 137 S. Ct.
at 999, is markedly more demanding than the de minimus standard previously
applied by the Tenth Circuit. And because this case is without question a close one,
the Amici argue that it is clear that this case should “go the other way.” This is
exactly what is being addressed by the parties in this case and additional argument
related to this issue by the Amici is duplicative and does not contribute anything
new to the parties’ positions. I reject the contention that the Amici’s interpretation
of the standard set forth by the Supreme Court in Endrew F. v. Douglas Cty.,

supra, differs from that of the Petitioner.
Furthermore, determining whether the IEP proposed by the District was
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reasonably calculated to enable Petitioner “to make progress appropriate in light of
[his] circumstances” is a factual assessment that is being capably addressed by the
parties in this case, and the arguments of the Amici in this regard do not provide
any additional information that is useful or helpful to the Court. To the extent that
the amicus curiae brief addressed what “all students” are entitled to under the
IDEA, as opposed to Petitioner’s brief that discusses whether his proposed IEP
meets that standard, such issues are not before me.
In so ruling, I note that the amicus curiae brief sets forth examples of
approaches and methodologies that have been utilized by public schools to allow
students with disabilities, as well as behavioral or communication issues like
Petitioner, to “meet high expectations.” [Doc #47-1 pg. 14] For example, the amicus

curiae brief discusses an approach implementing a multi-tiered systems of support
to meet the academic and behavioral needs of all students, including students with
disabilities, sometimes called Response to Intervention (“RTI”). The brief argues
that the use of Positive Behavioral Interventions and Supports (“PBIS”) within this
system provides “success in eliminating or minimizing inappropriate behavior.”
[Doc #47-1 pp. 11-14] While such information might be useful for school districts
when crafting their future approach to implementing IEPs that are reasonably
calculated to enable their students to make progress under their unique
circumstances, it does not shed any particular light on whether the IEP provided to
the Petitioner in this case was appropriately ambitious to meet the District’s

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substantive obligation, under the IDEA, to provide an IEP for Petitioner here. See

Endrew F. v. Douglas Cty. supra, 137 S. Ct. at 999 (indicating that the IDEA
contemplates a fact-intensive exercise for determining whether an IEP is
reasonably calculated to enable a child to make progress appropriate in light of the
child’s circumstances).
Therefore, based on the foregoing and in the exercise of my discretion, I deny
the Amici’s request for leave to participate and to file an amicus curiae brief in this
case. See O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 282 F. Supp.
2d 1271, 1274 (D.N.M. 2002)(denying the motion for leave to file an amicus curiae
brief when the Court did not believe that the participation of the amicus curiae
would be helpful in making its decision.)
ACCORDINGLY, I DENY the Motion of Former Officials of the U.S.
Department of Education, The Judge David L. Bazelon Center for Mental Health
Law, The National Down Syndrome Congress, The Autistic Self Advocacy Network,
The ARC of the United States, and The ARC of Colorado, To Participate as Amicus

Curiae in Support of Petitioner, Endrew F. [Doc #47]

Dated: November

16

, 2017, in Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
Lewis T. Babcock, Judge

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