Free Response - District Court of Colorado - Colorado

Case 1:03-cv-02582-RPM

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2582-RPM-OES NICHOLAS SYTSEMA, a minor, by and through his parents, JACK AND REBECCA SYTSEMA, Plaintiff, v. COLORADO SPRINGS SCHOOL DISTRICT 20, Defendant. ______________________________________________________________________________ DEFENDANT'S RESPONSE TO PLAINTIFF'S SUPPLEMENTAL BRIEF, AND DEFENDANT'S SUPPLEMENTAL BRIEF ______________________________________________________________________________

Defendant Colorado Springs School District 20 (the "School District") whose correct legal name is Academy School District No. 20, submits this brief for the following reasons: 1) To respond to the January 4, 2006, supplemental brief submitted by plaintiff; and 2) To notify the Court of a recent decision by the United States Supreme Court that resolves the issue of burden of proof in this matter. I. RESPONSE TO PLAINTIFF'S SUPPLEMENTAL BRIEF In their supplemental brief, the Sytsemas ask this Court to consider the July 8, 2005, Impartial Hearing Officer's Findings and Decision (the "IHO Decision") and the October 6, 2005, Agency Decision Upon State Level Review (the "ALJ Decision") issued in [Student] v. Thompson

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School District R2-J, Due Process Hearing L2005:102, Case No. ED 2005-0013 (2005). The Sytsemas' reliance on Thompson is misplaced. The facts of Thompson are significantly different from the facts of this case. The Student in Thompson attended school for several years before the dispute arose regarding his Individualized Educational Program (IEP). (See IHO Decision, pp. 3-15; ALJ Decision pp. 2-11) The record in the case included direct evidence of Student's performance under the IEPs implemented by the school district. Id. The record also included direct evidence that Student failed to make progress under the IEPs. Id. Specifically, Student could not generalize the things he learned in school to other settings. Id. Student also exhibited regression in his learning when away from school for even short periods of time. Id. Based upon these shortcomings, and the School District's ongoing failure to address the shortcomings, the IHO and ALJ found Student's parents were justified in removing Student from the school district and enrolling him in a private residential facility. If the 2001-2002 and 2002-2003 IEPs proposed by the School District in this case had been implemented, if Nicholas Sytsema had exhibited problems with generalization and regression under the IEPs, and if the School District had failed to respond to and address those problems, the Sytsemas reliance on Thompson might be justified. In this case, however, Nicholas Sytsema never attended school in the School District. The 2001-2002 and 2002-2003 IEPs would have been his first IEPs. His parents rejected the 2001-2002 and 2002-2003 IEPs before they were ever implemented. As such, the record in this case contains none of the direct evidence relied upon by the IHO and ALJ in Thompson. Whereas the issue in Thompson was whether or not the IEPs as implemented by the school district had in fact provided Student with educational benefit; the issue in 2

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this case is whether the IEPs proposed by the School District were reasonably calculated to provide Nicholas Sytsema with educational benefit if they had been implemented. Because of this significant factual difference, the Thompson decision provides very little guidance in addressing this case. As discussed at length in the School District's response brief, the record in this matter shows the School District was prepared to implement an educational program that addressed Nicholas Sytsema's specific needs as identified through the IEP evaluation and assessment process. The record shows the School District had a highly developed program for teaching students with autism. The program included extensive monitoring of student progress; and the ability to adjust an individual student's educational program in response to such monitoring. The Sytsemas

acknowledge in their supplemental brief, that the 2002-2003 IEP, and the School District's autism consultant, specifically recognized the importance of generalization of learning across settings. (See Plaintiff's Supplemental Brief, pp. 3-5) As discussed in the School District's response brief, the record includes evidence of the steps School District personnel regularly take to coordinate between home and school, including the fostering of close relationships with the parents of autistic students, making home visits, and working with parents in their homes. (See School District's Response Brief, pp. 38-41, 45-47) The record shows that all of these resources would have been available to the Sytsemas. Nothing in the record suggests that if the School District had implemented the 2001-2002 and 2002-2003 IEPs, Nicholas Sytsema would have experienced problems with generalization or regression like the ones experienced by Student in Thompson. Further, nothing in the record 3

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suggests that if Nicholas Sytsema had experienced such problems, the School District would have been unable to make timely and appropriate adjustments to his educational program to address the problems. Absent such evidence, the Sytsemas cannot cite concerns over generalization or regression as a basis for challenging the 2001-2002 and 2002-2003 IEPs. For the reasons set forth above and in the School District's response brief, the 2001-2002 and 2002-2003 IEPs were reasonably calculated to provide Nicholas Sytsema with educational benefit in full compliance with the requirements of the Individuals with Disabilities Education Act (IDEA). The IHO and ALJ decisions in this matter should be affirmed. II. THE U.S. SUPREME COURT'S RECENT SCHAFFER DECISION RESOLVES THE ISSUE OF BURDEN OF PROOF IN THIS MATTER. One of the issues in dispute in this matter is the proper allocation of the burden of proof. (See Plaintiff's Opening Brief, pp. 13-14; Defendant's Response Brief, pp. 16-19) The United States Supreme Court's recent decision in Schaffer v. Weast, ___ U.S. ___, 126 S.Ct. 528 (2005) resolves the issue. In Schaffer, a student and his parents initiated proceedings under the IDEA to challenge the validity of an IEP offered by the Montgomery County Public Schools System. Schaffer, 126 S.Ct. at 533. The Supreme Court granted certiorari to address the issue of which party bears the burden of proof in such cases. Schaffer, 126 S.Ct. at 531, 533. The Court held "that the burden lies, as it typically does, on the party seeking relief." Schaffer, 126 S.Ct. at 531. The Court wrote, The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party is Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ. 4

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Schaffer, 126 S.Ct. at 537. In this case, the Sytsemas are the party challenging the validity of the 2001-2002 and 20022003 IEPs. The Sytsemas are the party seeking relief (i.e., reimbursement for the cost of their home program). This case does not involve any challenge to an IEP by the School District, or request for relief by the School District.1 Based upon Schaffer, the IHO and ALJ correctly ruled that the Sytsemas bear the burden of proof in this matter. The IHO and ALJ rulings should be affirmed.

As noted above, the 2001-2002 and 2002-2003 IEPs proposed by the School District would have been Nicholas Sytsema's first IEPs. Since there were no other IEPs, and since the School District obviously does not challenge its own proposed IEPs, this case does not and cannot involve any challenge to an IEP by the School District. 5

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III. CONCLUSION For the reasons stated herein and in its response brief, the School District respectfully requests this Court to issue a decision affirming the IHO and ALJ decisions, and denying the Sytsemas' claims in their entirety. Respectfully submitted this 17th day of January, 2006

s/ Robert I. Cohn_________________________ Robert I. Cohn Brent P. Benrud STETTNER, MILLER AND COHN, P.C. 1050 17th Street, Suite 700 Denver, CO 80265-2008 (303) 534-0273 (303) 534-5046 fax [email protected] Attorneys for Academy School District 20

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CERTIFICATE OF SERVICE

I certify that on January 17, 2006, I electronically filed the foregoing DEFENDANT'S RESPONSE TO PLAINTIFF'S SUPPLEMENTAL BRIEF, AND DEFENDANT'S SUPPLEMENTAL BRIEF with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Michael C. Cook, Esq. [email protected]

s/Kimberly Hanson Kimberly Hanson Stettner, Miller and Cohn, P.C. 1050 17th Street, Suite 700 Denver, Colorado 80265-2008 303-534-0273 303.532.5036 (facsimile) e-mail: [email protected]

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