Smith v. Cheyenne Mountain School District 12

Filing 60

ORDER. ORDERED that plaintiff's Motion for Clarification of Preliminary Injunction Order 39 is GRANTED in part and DENIED in part as indicated in this order. ORDERED that plaintiff's Verified Motion for Order to Show Cause 46 is denied. Entered. Entered by Judge Philip A. Brimmer on 08/20/15.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-02651-PAB-CBS
RAMONA SMITH,
Plaintiff,
v.
CHEYENNE MOUNTAIN SCHOOL DISTRICT 12,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Motion for Clarification of Preliminary
Injunction Order [Docket No. 39] and the Verified Motion for Order to Show Cause
[Docket No. 46] filed by plaintiff Ramona Smith. The relevant background facts have
been set forth elsewhere and will not be restated here except as relevant to resolving
the present motions. See Docket No. 59 at 1-4.
I. MOTION FOR CLARIFICATION
On December 4, 2014, plaintiff filed a Motion for Clarification of Preliminary
Injunction Order (“motion for clarification”) [Docket No. 39], seeking clarification as to
the effect of the Court’s order granting in part plaintiff’s motion for a preliminary
injunction (the “stay-put order”) [Docket No. 21] pursuant to the Individuals with
Disabilities Education Act’s (“IDEA”) “stay-put” provision, 20 U.S.C. § 1415(j). The
reason for plaintiff’s motion appears to be concern over the effect of the stay-put order
on R. Smith (a minor), by and through his mother, Ramona Smith v. Cheyenne

Mountain Charter Academy, No. 2014CV339 (Dist. Ct. El Paso Cnty., Colo.), a
collateral proceeding in which plaintiff sought a ruling that the Cheyenne Mountain
Charter Academy (“CMCA”) was required to maintain R.S.’s enrollment pursuant to
Colorado school choice law, Colo. Rev. Stat. § 22-36-101 et seq. See Docket No. 45-1
at 1-4. The state court ruled that Colorado school choice law did not compel CMCA to
enroll R.S. for the 2014-2015 school year, but acknowledged that its decision was
separate from this Court’s stay-put order. Id.
In the present motion, plaintiff argues that the stay-put order had the effect of
vacating the ALJ’s stay-put order in its entirety and overturning the ALJ’s rulings
regarding Colorado school choice law. Docket No. 39 at 6-7. Plaintiff contends that,
“without an explicit written clarification of this Court’s Order, the respondent will
continue to erroneously argue in state court that this Court did not overturn [the ALJ’s]
application of the School Choice law to R.S., and that that aspect of [the ALJ’s] order
somehow magically survived this Court’s reversal of the decision.” Id. at 7. Defendant
argues that plaintiff’s motion for clarification is unnecessary because the state court’s
order concerned only Colorado school choice law, not stay-put relief under 20 U.S.C.
§ 1415(j). Docket No. 45 at 1.
Plaintiff fails to identify any ambiguity in the Court’s stay-put order. As plaintiff’s
complaint indicates, this action is brought solely under 20 U.S.C. § 1415(j). Docket No.
1 at 1. Thus, R.S.’s current educational placement as contemplated by § 1415(j) is the
only issue in the present case. At the preliminary injunction hearing, the Court directed
defendant to maintain R.S.’s current educational placement at CMCA pursuant to
§ 1415(j). The issue of whether plaintiff was entitled to relief under Colorado school
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choice law was not raised in the present case and, theref ore, was not before the Court
in resolving plaintiff’s request for stay-put relief.
Plaintiff nonetheless argues that the Court ruled on Colorado school choice law;
in doing so, plaintiff misinterprets the Court’s order. Docket No. 39 at 6-7. Defendant’s
position throughout this dispute has been, in part, that its decision to deny R.S.
enrollment at CMCA was appropriate under Colorado school choice law. Although the
Court recognized that Colorado school choice law may control R.S.’s placement in the
future, the Court ruled that Colorado school choice law was irrelevant for purposes of
analyzing R.S.’s current educational placement under § 1415(j). The Court noted that,
to the extent Colorado school choice law is in conflict with the stay-put provision, the
stay-put provision may preempt Colorado school choice law. Thus, the Court’s ruling
did not in any way rest on Colorado school choice law; rather, the Court merely rejected
defendant’s argument that Colorado school choice law justified its decision regarding
R.S.’s enrollment. No other aspect of the Court’s ruling concerned Colorado school
choice law. The Court’s order is sufficiently clear in all other respects.
II. MOTION FOR ORDER TO SHOW CAUSE
On December 13, 2014, plaintiff filed a Verified Motion for Order to Show Cause
[Docket No. 46]. Plaintiff claims that defendant has violated the stay-put provision and
the stay-put order.
The parties do not dispute that R.S. has been attending CMCA since October
17, 2015. Docket No. 46 at 7; Docket No. 47 at 3. On Nov ember 5, 2014, R.S.’s “IEP

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team”1 met with plaintiff for an annual review of R.S.’s IEP. Docket No. 46 at 8. A
proposed draft IEP (the “draft IEP”) was provided to plaintiff. Id.; Docket No. 46-4. The
draft IEP lists CMCA as R.S.’s school of attendance and indicates that R.S.’s eligibility
for extended school year (“ESY”) services2 will be determined by April 15th. Docket No.
46-4 at 1, 3. On November 23, 2014, plaintiff emailed defendant’s director of special
education Karen Higgins, expressing multiple concerns regarding the draft IEP. Docket
No. 46-4 at 5. Plaintiff’s email stated, among other things, that R.S.’s academic
performance was lacking, that R.S. should be provided with “full time, one-on-one
access to a Board Certified Behavior Analyst,” and that R.S.’s IEP should call for R.S.
to receive ESY services. Id. Plaintiff also reiterated her request that R.S. be placed in
private school. Id.
On December 5, 2014, R.S.’s new IEP (the “2015 IEP”) was finalized. See
Docket No. 46-5 at 1. The 2015 IEP lists CMCA as R.S.’s school of attendance, but a
handwritten footnote further states that,
[R.S.] is currently attending Cheyenne Mountain Charter Academy during the
pendency of a due process complaint filed by Mr. + Mrs. Smith per order of
the U.S. District Court for the District of Colorado. The order expires once
the due process case is no longer pending or the order is overturned.
Id. The 2015 IEP indicates that R.S.’s eligibility for ESY services will be determined by

1

Plaintiff does not identify the members of R.S.’s IEP team, except to indicate
that it included those persons identified in § 1414(d)(1)(B) and a representative from the
Falcon School District. Docket No. 49 at 2.
2

Although neither party explains the term, ESY services appear to refer to a
summer school program designed for students who require remedial classes. See
generally Docket No. 46-4 at 1, 3. CMCA provided ESY services to R.S. during the
summer of 2014. Docket No. 33-1 at 28.
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April 15, 2015, explaining that
The IEP and [R.S.’s] parent agreed that the student had not been in
attendance for a long enough period of time to determine whether there was
severe regression such that there was no recoupment or very slow
recoupment of skill. . . . New goals were added for which there is not data
regarding regression/recoupment; therefore, a determination will be made in
April of 2015 whether [R.S.] is in attendance at CMCA or another school.
Id. at 3. The 2015 IEP further indicates that “Services will continue to be provided at
the Cheyenne Mountain Charter Academy until the preliminary injunction ordered by
Judge Brimmer expires or is overturned on appeal, whichever occurs first.” Id. at 4.
A. Analysis
Plaintiff argues that defendant has committed four violations of the stay-put
provision and the stay-put order. However, before proceeding to the merits of plaintiff’s
arguments, the Court notes that the stay-put provision requires the maintenance of a
student’s “then-current educational placement.” § 1415(j). This case was brought
solely under § 1415(j). See, e.g., Docket No. 1 at 1 (“Petitioner therefore seeks relief
. . . directly under Section 1415(j)”). The Court has ruled that CMCA is R.S.’s current
educational placement, a ruling which plaintiff does not appear to dispute. 3 Thus, in
resolving plaintiff’s motion, the Court is limited to addressing only those issues that

3

Plaintiff is appealing the portion of the stay-put order denying plaintiff’s request
that R.S. be placed in a private school, Docket No. 28 at 1, but plaintiff has not
indicated that she otherwise disputes the Court’s ruling that CMCA is R.S.’s current
educational placement. In the present motion, plaintiff states that, “In light of the
Respondent’s unilateral months-long termination of R.S.’s placement and all of his IEP
services, it is respectfully submitted (and mutually agreed upon by the parties) that
there was no such placement to ‘maintain.’” Docket No. 46 at 7 n.4. Plaintiff does not
elaborate or otherwise explain this statement. Nor is it apparent to the Court how this
statement, if true, would affect the present motion. As a result, the Court does not
interpret plaintiff’s motion as a challenge to the Court’s stay-put determination.
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pertain to whether defendant is maintaining R.S.’s current educational placement
pursuant to § 1415(j) and the stay-put order. See Drinker by Drinker v. Colonial Sch.
Dist., 78 F.3d 859, 865 n.13 (3d Cir. 1996). T o the extent plaintiff claims that defendant
committed procedural violations while preparing the 2015 IEP, such claims are outside
the scope of this case and will not be considered in resolving the present motion.
1. Changes to R.S.’s IEP
Plaintiff argues that, after the November 5, 2014 IEP meeting, defendant
improperly changed R.S.’s IEP to permit CMCA to remove R.S. “prior to the IEP’s
November 5, 2015 service end date.” Docket No. 46 at 1. Specifically, plaintiff appears
to argue that any statements concerning the stay-put order were improperly included in
the 2015 IEP. Docket No. 49 at 3. Def endant responds that the stay-put order requires
CMCA to maintain R.S.’s placement at CMCA until any appeals of the underlying due
process complaint are complete, not until “‘the IEP’s November 5, 2015 end date.’”
Docket No. 47 at 3 (quoting Docket No. 46 at 1).
Plaintiff fails to establish that the challenged statements contained in the 2015
IEP infringe upon R.S.’s right to a free and appropriate public education or otherwise
substantively alter R.S.’s current educational placement. Rather, the challenged
additions appear to be entirely procedural and do not purport to, for example, alter the
degree of academic support that R.S. should receive. Plaintiff does not argue
otherwise. Moreover, the challenged alterations to the 2015 IEP appear to accurately
represent the extent of defendant’s obligation to maintain R.S.’s enrollment under the
stay-put provision as ordered by the Court. Compare Docket No. 21 at 7 with Docket
No. 46-5 at 1, 4. As a result, plaintiff’s argument is insufficient to show that defendant
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is in violation of § 1415(j) or has failed to comply with the stay-put order.4 Plaintiff’s
remaining arguments on this issue accuse defendant of committing procedural
violations in preparing the 2015 IEP. Such arguments are not appropriately raised in
this case and, therefore, will not be addressed.
2. ESY Services
Plaintiff argues that, because R.S. was previously entitled to ESY services, the
2015 IEP changed the status quo by holding “in abeyance that determination of R.S.’s
Extended School Year services.” Docket No. 49 at 4. Defendant argues that the stayput order did not mandate that R.S. be provided ESY services. Docket No. 47 at 4.
Defendant also argues that the 2015 IEP does not state that R.S. is not elig ible for ESY
services, only that a determination of his eligibility will be determined in April 2015. Id.
at 5.
The Court need not decide whether ESY services are part of R.S.’s current
educational placement. Defendant has not indicated that it will deny R.S. such
services; thus, even if ESY services are part of R.S.’s current educational placement,
there has been no definitive proposed change with respect to ESY services. Plaintiff’s
argument is therefore premature. Moreover, the 2015 IEP explains that R.S.’s eligibility
for ESY services will be made based upon R.S.’s new educational goals, for which no
data was available at the time the 2015 IEP was drafted. As Ms. Higgins further
4

Plaintiff’s argument appears premised on a belief that the 2015 IEP mandates
R.S.’s enrollment at CMCA until the 2015 IEP’s “end date” of November 5, 2015.
Docket No. 46 at 1. However, it is not entirely clear that the “End Date” of November
15, 2015 contained in the 2015 IEP m andates continued enrollment rather than, for
example, simply indicating the date by which R.S.’s educational needs should be
reevaluated and a new IEP created. See Docket No. 46-5 at 1, 4.
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explains, “[R.S.] had only been in school for 9 days . . . prior to the IEP meeting. The
IEP team did not feel that they had enough information to make the annual
determination about the [ESY] services for him. While [R.S.] showed some regression,
he also showed improvement.” Docket No. 47-1 at 3, ¶ 3. Ms. Higgins’ explanation
appears reasonable and plaintiff does not otherwise dispute the wisdom of gathering
more information before making a decision on R.S.’s need for ESY services.5
Plaintiff’s argument appears to be additionally premised on a belief that, in order
to maintain R.S.’s current educational placement, CMCA must continue to implement
“the entirety of R.S.’s May 1, 2014 IEP.” Docket No. 49 at 5. However, if that were
true, school districts would be powerless to modify an IEP in response to changes in a
student’s educational needs whenever a stay-put order is in effect. The Court does not
interpret the stay-put provision so strictly. See O’Toole By and Through O’Toole v.
Olathe Dist. Schs. Unified Sch. Dist. No. 233, 144 F.3d 692, 702 (10th Cir. 1998) (“the
implementation of the program is an on-going, dynamic activity, which obviously must
be evaluated as such”). For the foregoing reasons, plaintiff fails to show that defendant
violated the stay-put order with respect to ESY services.
3. Academic Support
Plaintiff claims that defendant is not providing R.S. with “intensive one-on-one
para-professional support.” Docket No. 46 at 1, 11. In support of her argument,
plaintiff provides examples of homework assignments R.S. completed at school, Docket

5

Ms. Higgins also states that, at the IEP meeting, plaintiff was in agreement with
defendant’s decision regarding ESY eligibility. Id. at 4, ¶ 6. Plaintiff does not squarely
dispute Ms. Higgins’ recollection of the IEP meeting.
8

No. 46-4 at 6-7, and homework assignments R.S. completed at home. Id. at 8-9.
Plaintiff argues that the assignments R.S. completes at school are unsatisfactory and
that, each day after R.S. returns home from school, plaintiff “has R.S. erase these
scribbles and redo the schoolwork at the level he is capable of performing.” Docket No.
49 at 7.
In response, defendant provides an affidavit from R.S.’s first grade teacher
Elizabeth Wilson, who states that
the quality of [R.S.’s] work has steadily improved since his return to CMCA
in October. In fact, his work might have improved even more were he at
school more consistently. As of . . . December 15th, [R.S.] has missed 10 of
35 instructional days since he has been back in school here, or slightly more
than 28% of the school days. Mrs. Smith hasn’t contacted me once since
her son came back to CMCA in October to register any concern about his
academic progress or work.
Docket No. 47-1 at 5, ¶ 2. Plaintiff does not squarely dispute Ms. Wilson’s analysis of
R.S.’s academic progress. Docket No. 49 at 6-7.
The IDEA guarantees “access and opportunity.” Thompson R2-J Sch. Dist. v.
Luke P. ex rel. Jeff P., 540 F.3d 1143, 1151 (10th Cir. 2008). Academ ic progress is a
factor in ascertaining whether an IEP is “reasonably calculated to provide educational
benefit.” CJN v. Minneapolis Pub. Schs., 323 F.3d 630, 642 (8th Cir. 2003). However,
the IDEA “does not require that schools attempt to maximize a child’s potential, or, as a
matter of fact, guarantee that the student actually make any progress at all. It requires
only that the student be provided with an IEP that is reasonably calculated to provide
educational benefit . . . .” Id.
Plaintiff appears to be sincere in her belief that R.S. can better complete certain
academic assignments at home. However, the IDEA does not, as plaintiff’s argument
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suggests, guarantee academic progress. See CJN, 323 F.3d at 642. Plaintiff does not
dispute Ms. Wilson’s statement that plaintiff has not visited R.S.’s classroom or
otherwise contacted R.S.’s teachers to discuss her concerns. Docket No. 47-1 at 5-6,
¶¶ 2-3. Moreover, as a factual matter, plaintiff’s dissatisfaction with R.S.’s academic
progress does not, by itself, establish that R.S.’s academic support is insufficient or in
violation of R.S.’s IEP. Throughout her briefs, plaintiff expresses a belief that defendant
“continues to be unwilling to provide R.S. with the intensive one-on-one paraprofessional support for academic instruction as called for in his May 1, 2014 IEP.”
See, e.g., Docket No. 49 at 6 (quotations omitted). Although CMCA determined that it
would need to hire additional staff in order to accommodate R.S. for the 2014-2015
school year, this was defendant’s stated reason for denying R.S. enrollment pursuant to
Colorado school choice law prior to the present dispute. See Docket No. 46-3 at 8.
The fact that CMCA at one time denied R.S. enrollment because it could not
accommodate him without hiring additional staff does not, by itself, suggest that CMCA
or defendant is now unwilling or unable to comply with the stay-put order. Plaintiff
provides no other basis for her belief that defendant has refused to provide R.S. with
the services contemplated by his IEP and no such basis is apparent from the record.
Similarly, the mere fact that defendant continues to oppose plaintiff’s position in this
litigation does not indicate that defendant is not complying with the stay-put order.
Plaintiff’s argument on this issue is therefore unsupported.
4. Lunchtime Support
Plaintiff claims that R.S. “repeatedly” returns home from CMCA without having
opened the lunch he brought to school. Docket No. 46 at 11. Plaintiff contends that,
10

because R.S. does not have the functional skills to unpack his own lunch, the fact that
R.S. returns home with his lunch unopened further establishes that defendant is not
providing R.S. sufficient academic support. Id. In response, defendant refers to Ms.
Wilson’s affidavit. Docket No. 47 at 6. Ms. Wilson states that R.S. eats lunch in her
classroom and that plaintiff’s claim is “completely untrue and she has not once visited
my classroom, either during instructional or lunch time, to verify her allegation.” Docket
No. 47-1 at 5-6, ¶ 3. Ms. Wilson further explains that
[R.S.] has been allowed to heat his lunch in the microwave every day since
his return to CMCA. He often does not eat the entrée his mother sends (he
says he doesn’t like it), and instead chooses the Goldfish crackers and other
processed snacks that are also packed in his sack lunch. He is encouraged
every day by me, his paraprofessional, and the classroom aide to eat his
main course, and we have even tried offering him incentives, such as
allowing him to sit near the microwave (he is fascinated by the fan) if he will
eat. He is the only student in the class who is allowed to heat his lunch every
day.
Docket No. 47-1 at 5-6, ¶ 3-4. Plaintiff does not directly dispute Ms. Wilson’s
explanation, but instead states that she sent def endant an email regarding her
concerns and that R.S. “still often comes home hungry [and] with his lunch unopened.”
Docket No. 49 at 7.
Ms. Wilson’s description of the support provided to R.S. during the lunch hour
does not indicate that CMCA staff are acting in dereliction of the Court’s order. Rather,
it appears from Ms. Wilson’s explanation that CMCA staff take care to facilitate R.S.’s
needs during the lunch hour. Plaintiff does not dispute the accuracy of Ms. Wilson’s
description of the support R.S. receives or otherwise provide any basis to question Ms.
Wilson’s credibility. Thus, defendant has provided a reasonable and unrebutted
explanation for the issues plaintiff raises. Plaintiff’s argument is therefore insufficient to
11

establish that defendant is in violation of the stay-put order.
III. CONCLUSION
The inquiry into a student’s current educational placement does not require
courts to “micromanage minute aspects of a school district’s curriculum choices
regarding IDEA-eligible students.” Eley v. Dist. of Columbia, --- F. Supp. 2d ----, 2014
WL 2507937, at *8 (D.D.C. June 4, 2014). Plaintif f’s motion largely seeks a level of
judicial intervention in the day-to-day aspects of R.S.’s education that the IDEA does
not contemplate. For the foregoing reasons, it is
ORDERED that plaintiff’s Motion for Clarification of Preliminary Injunction Order
[Docket No. 39] is GRANTED in part and DENIED in part as indicated in this order. It is
further
ORDERED that plaintiff’s Verified Motion for Order to Show Cause [Docket No.
46] is denied.

DATED August 20, 2015.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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