GORSUCH, Circuit Judge.
Jeff and Julie P. contend that the Thompson R2-J School District failed to provide their autistic son Luke with the educational services guaranteed to him by the Individuals with Disabilities Education Act ("IDEA") because of the difficulty he experiences in generalizing skills learned in the school setting to the home and other environments. They also assert that, given the severity of some of the manifestations of Luke's disability, only a private residential school can provide Luke with an adequate education. Having withdrawn Luke from the public school he attended in order to enroll him in a private residential program, the family now seeks reimbursement of Luke's tuition costs from the school district. Because every factfinder to have assessed this case has found that Luke was making progress in the public school environment on the educational goals individually formulated for him by the school district and his parents, we are constrained to reverse.
Born in 1994, Luke was diagnosed with autism at the age of two.
In accordance with these requirements, Luke's special education teacher at Niwot Elementary, Margaret Wilson, led the effort in formulating an IEP for Luke and working with him through his kindergarten and first grade years. Luke's IEPs for kindergarten and first grade included objectives relating to communication skills, self care (including toilet training), independence and motor skills, social interaction and play skills, and academic functioning. They also specified that Luke would split time between the general classroom and a special education classroom.
Ms. Wilson's evaluations indicate that Luke made significant progress and achieved many of his IEP goals during the time she worked with him, see Impartial Hearing Officer's ("IHO") Decision at 4-5; Administrative Law Judge's ("ALJ") Decision at 4, though she also reported that Luke, like many other autistic children, had difficulty generalizing skills, or, in other words, "apply[ing] the skill[s] to different people or different environments," Answer Br. at 42; see IHO Decision at 4. Luke's difficulty in generalizing the skills he learned in school to the home is borne
In the Fall of 2002, Luke's family moved to Colorado's Thompson R2-J School District, and Luke enrolled in second grade at Berthoud Elementary. In anticipation of the transfer, the special education teacher at Berthoud visited Niwot and communicated with Ms. Wilson, as well as Luke's parents, in order to make plans for a smooth transition. A new IEP was adapted from the IEPs that had been developed at Niwot, and Luke continued to make progress on his goals and objectives during his second grade year.
Despite the apparent progress at school during his kindergarten through second grade years, Luke's life away from school during the same time paints a much different picture, as his autism manifested itself in various behavioral problems that were especially severe at home. Luke was unevenly tempered, often displaying inappropriate and sometimes violent behavior at home and in public places such as grocery stores and restaurants. He developed various sleep problems — going to bed at odd hours, waking up frequently at night, and refusing to sleep in a bed. Luke also developed a habit of intentionally spreading his nighttime bowel movements around his bedroom. In addition, although Luke became toilet trained at school by the time he was in first grade, he was not able to transfer this skill to the home and other settings away from school.
Understandably, these behaviors took a tremendous toll on Luke's family. Worried that, without intervention, Luke's behavior would become only more dangerous as he continued to grow physically, the family began looking into residential placement options. Through research on the Internet, they discovered the Boston Higashi School ("BHS"), which specializes in education of children with autism. Students enrolled in the residential program at BHS live at the Boston campus for 44 weeks out of the year and are supervised 24 hours a day by BHS educators and staff. ALJ Decision at 7. Luke's family, along with Ms. Wilson, who kept in touch with the family and retained an interest in Luke's education, visited the BHS campus in late Fall 2003 and filled out an application for Luke's admission during the visit.
At around the same time, Luke's family asked Diane Osaki, an occupational therapist who runs a private day school for autistic children, as well as Ms. Wilson, to observe and assess Luke while at school. Ms. Osaki observed Luke at Berthoud Elementary for a three hour period, interviewed Luke's parents, and reviewed charts and video footage of Luke. She reported a number of concerns in the school's work with Luke, including the facts that staff sometimes unknowingly reinforced Luke's unwanted behaviors, that Luke had made little or no progress on many of his goals and objectives, and that Luke had "[g]reat difficulty generalizing skills taught in one environment to natural daily living routines." Osaki Report, R. Vol. V. at 864. Ms. Osaki also expressed concern that Luke had "increase[d] the strength and number of challenging and unwanted behavior[s]" and that, since transferring to Berthoud Elementary, Luke had apparently regressed in certain respects. Id. Ms. Osaki did, however, note many areas in which Luke was improving and stated that "throughout his early education, Luke has made good progress in all areas of development." Id. Ms. Osaki recommended, among other things, "12 month programming to reduce the risk of regression," increased consistency in training of school staff, and additional parent training. Id. at 866. For her part, Ms. Wilson met with Luke and administered the Autism Diagnostic Observation Schedule test.
On December 16, 2003, Luke's parents met with his teachers and other school officials for an IEP review meeting. At the meeting, the parents presented a list of goals they had developed based on recommendations from Ms. Osaki and asked that the goals be included in Luke's IEP for 2004. They also stated, however, that they felt the goals were not attainable at Berthoud Elementary and that the only appropriate placement for Luke would be a residential program tailored to autistic children, such as that offered by BHS. The school district officials expressed openness to revising Luke's IEP to include the parents' proposed goals and to working with Ms. Osaki to improve their special education program. But they also expressed their belief that the proposed goals were attainable at Berthoud Elementary and that residential placement was not necessary. At the meeting's conclusion, the school district officials stated that they planned to revise Luke's IEP and then submit a new draft to the parents.
Two days after the IEP meeting, on December 18, BHS accepted Luke's application for enrollment. The next day, on December 19, counsel for Luke's family sent the school district a letter stating that the family intended to remove Luke from Berthoud Elementary, enroll him at BHS, and, pursuant to 20 U.S.C. § 1412(a)(10)(C)(ii), seek from the school district reimbursement of the costs of Luke's education at BHS. Luke officially enrolled as a residential student at BHS on January 12, 2004.
On January 15, 2004, the school district sent to Luke's family a revised, final IEP for 2004. The IEP proposed by the school district incorporated virtually all of the goals requested by the parents, but it called for continued placement at Berthoud Elementary rather than the residential placement requested by the parents. Luke's family rejected the IEP, and Luke remained enrolled at BHS.
In due course, the family sought an IDEA due process hearing in the Colorado Department of Education, pursuant to 20 U.S.C. § 1415, petitioning for a determination that the school district's IEP failed to provide Luke with a FAPE; that a residential placement was necessary for Luke; and that the school district should reimburse the family for Luke's education expenses at BHS. Following a five-day hearing, the impartial hearing officer ("IHO") held in favor of the family, finding that, while the "evidence in general ... suggest[s] that [Luke] made some progress in public school prior to [his removal], due to his inability to generalize his learning experiences at school to home and community environments, [Luke] was not able to apply this progress in those other contexts." IHO Decision at 14. On this basis, the IHO held that a residential placement was necessary for Luke and that the school district was obliged under IDEA to pay the costs of that placement.
On appeal before the Colorado Office of Administrative Courts, an Administrative Law Judge ("ALJ") agreed with the IHO that, although Luke "had achieved nearly a quarter of the goals and objectives in his IEP[,] ... was making slow [but] steady progress toward others[,] .... [and] overall... was advancing in his goals at school[,][t]he problem remained ... [that Luke] was unable to transfer any of his learned skills and use them in environments outside of school." ALJ Decision at 8.
Pursuant to Congress's direction, to obtain reimbursement for private tuition at BHS Luke's parents must show, at a minimum, that the school district violated IDEA and that the education provided by BHS is reasonably calculated to enable Luke to receive educational benefits. L.B. ex rel. K.B. v. Nebo Sch. Dist., 379 F.3d 966, 978 (10th Cir.2004); 20 U.S.C. § 1412(a)(10)(C)(ii). In turn, our precedent indicates that Luke's parents can show a violation of IDEA in one of two ways. They can either show that the school district failed to provide Luke with a free and appropriate public education; or they can show that, despite the school district's provision of a free and appropriate public education, it failed to provide that education, to the maximum extent appropriate, in the least restrictive environment.
Beginning with their initial request for a due process hearing before an IHO, Luke's parents have confined themselves to alleging the first type of violation — contending that the school district failed "to provide Luke [P.] with a free and appropriate public education." R. Vol. II at 240.
How do we know when a school district has or has not provided a disabled student with a FAPE? To be sure, the term is hardly self-defining. Fortunately, however, the statute and Supreme Court afford some additional direction, indicating that we must ask, more specifically, whether Luke's December 2003 IEP was "reasonably calculated to enable [him] to receive educational benefits," Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034,
The Supreme Court has further explained that this standard is not an onerous one. "Congress did not impose upon the States any greater substantive educational standard than would be necessary to make ... access meaningful.... [T]he intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside." Rowley, 458 U.S. at 192, 102 S.Ct. 3034.
In assessing whether Luke's parents have carried their burden of establishing that his December 2003 IEP fails to meet these standards, we apply a somewhat unique standard of review. "Unlike the deferential review typically afforded to administrative adjudication of statutory claims, Congress requires district courts to apply a modified de novo standard when reviewing agency disposition in the IDEA context." Garcia, 520 F.3d at 1125; 20 U.S.C. § 1415(i)(2)(C). Specifically, the district court must (1) receive the record of the administrative proceedings, (2) hear additional evidence at the request of a party, and (3) base its decision on the preponderance of evidence. 20 U.S.C.
Luke's parents contend that his December 2003 IEP was not reasonably calculated to provide him with educational benefits primarily because it failed to address adequately his inability to generalize functional behavior learned at school to the home and other environments. The ability to generalize, Luke's parents insist, is "fundamental," Answer Br. at 43, and without it "learning does not exist," id. at 42. Absent the ability to generalize skills learned at school, particularly basic self help and social skills, they submit Luke's education is effectively worthless. And the only setting in which Luke is certain to improve his generalization skills, his parents maintain, is a residential setting not provided for in the challenged IEP. The school district responds that, as a matter of law, generalization across settings is not required by IDEA so long as Luke can be said to be making some progress in school, and cites cases from the Eleventh and First Circuits, as well as various district courts, so holding.
In support of their argument about the essential legal importance of generalization skills, appellees point to and rely heavily on language in the Act's statements of purpose indicating that Congress sought to help prepare disabled students for self-sufficient "independent living." See 20 U.S.C. § 1401(34); 20 U.S.C. § 1400(c)(1) (referring to "our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency"). Luke's parents submit that without an assurance that students will be able to generalize skills from the school environment to the home — whether learning how to sit quietly, following directions, or otherwise — the sort of self-sufficiency and independence Congress expressly wished for disabled persons like their son will always be beyond reach.
While we are sympathetic to Luke's parents' desire to see their child thrive, the difficulty with their argument is that Congress did not provide in IDEA a guarantee of self-sufficiency for all disabled persons, and the most authoritative arbiter of congressional intent has already reached this conclusion. In Rowley, the Supreme Court expressly considered and rejected the notion that "self-sufficiency" is "the substantive standard which Congress imposed on the States." 458 U.S. at 201 n. 23, 102 S.Ct. 3034. The Court explained that "[n]oticeably absent from the language of [IDEA] is any substantive standard prescribing the level of education to be accorded handicapped children." Id. at 189, 102 S.Ct. 3034 (emphasis added). Rather, while the promotion of self-sufficiency was surely among Congress's purposes in enacting IDEA, the Court explained that Congress proceeded to select a rather particular means for advancing that purpose — a statutory scheme focused on and limited to enhancing disabled students' access to public education. See id. at 192, 102 S.Ct. 3034; id. at 201 n. 23, 102 S.Ct. 3034 ("We thus view these references in the legislative history [to the concept of self-sufficiency] as evidence of Congress's intention that the services provided handicapped children be educationally beneficial, whatever the nature or severity of their handicap.").
Specifically, Congress mandated that the States provide "individual education programs" for all eligible disabled students, but then left the content of those programs entirely to local educators and parents, requiring only that they include "a statement of measurable annual goals, including academic and functional goals, designed to meet the child's needs that result from the child's disability to enable the child to be involved in and make progress in the general education curriculum" and meet the child's "other educational needs." 20 U.S.C. § 1414(d)(1)(A)(i)(II). In other words, Congress established procedures to guarantee disabled students access and opportunity, not substantive outcomes. See Rowley, 458 U.S. at 192, 102 S.Ct. 3034; see also Dixie Snow Huefner, Judicial Review of the Special Educational Program Requirements Under the Education for All Handicapped Children Act: Where Have We Been and Where Should We Be Going?, 14 Harv. J.L. & Pub. Pol'y 483, 495 (1991) (discussing how IEPs do not guarantee particular outcomes because "[i]f the IEP were a contract obligating the school to achieve the specified goals and objectives, districts would set the most minimal of goals"). Congress further prescribed that IEPs should generally be addressed to and carried out in the least restrictive environment available — usually the public school classroom. 20 U.S.C. § 1412(a)(5)(A). And while not mandating what their content should be, Congress emphasized the need for a careful and open process in the creation of IEPs: "We think that the congressional emphasis
Our reading of the Act on this score is in harmony with the holdings of other circuits who have reached this question before us. In Gonzalez, a family claimed, much as here, that while their autistic son, Gabriel, might have been making modest academic progress at school, placement in a private residential program was necessary because he was not generalizing skills learned at school and his tantrums at home made him a potential safety threat. Without discounting the struggles Gabriel's parents faced, the First Circuit held that IDEA was not designed "to remedy a poor home setting or to make up for some other deficit not covered by the Act." Gonzalez, 254 F.3d at 353 (internal citation omitted). Similarly in Devine, the Eleventh Circuit rejected private placement for an autistic student, holding that "generalization across settings is not required to show an educational benefit," and that school districts must do no more than provide an IEP that enables the student to "mak[e] measurable and adequate gains in the classroom." 249 F.3d at 1293. See also L.G. ex rel. B.G. v. Sch. Bd. of Palm Beach County, 255 Fed.Appx. 360, 365-67 (11th Cir.2007) (denying claim by parents for reimbursement of residential placement costs where child was making progress in classroom but not generalizing the progress outside of school); San Rafael, 482 F.Supp.2d 1152, D.B., 985 F.Supp. 457; Hall, 856 F.Supp. 1521; Terry Jean Seligmann, Rowley Comes Home to Roost: Judicial Review of Autism Special Education Disputes, 9 U.C. Davis J. Juv. L & Pol'y 217 (2005) (discussing rise of autism rates and IDEA cases); see Brief of Amici Curiae Colorado Association of School Boards et al. (arguing that self-sufficiency is not the substantive standard imposed by IDEA).
While we hold that generalization skills need not always be included in, and progress on such skills is not necessary to ensure, a compliant IEP, we remain mindful that the Supreme Court has cautioned against "establish[ing] any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act." Rowley, 458 U.S. at 202, 102 S.Ct. 3034. For this reason, we note that at least one other court has suggested that in some instances difficulty generalizing skills may be so severe that it prevents a student from receiving any educational benefit. See Gonzalez, 254 F.3d at 353. In such situations, our sister court held, an IEP "must address such problems in some fashion, even if they do not warrant residential placement." Id. As discussed below, however, because the student before us was indisputably making some progress, we need not reach this question today.
In this case, we simply cannot say that, as of December 2003, Luke's generalization difficulties precluded him from making some progress at Berthoud Elementary. Critically, every single factfinder in this case found that Luke was progressing on his existing IEP goals in public school. By way of example, the IHO determined that "the evidence in general and the December 16, 2003, IEP in particular suggest that Luke made some progress in public school prior to that date." IHO Decision at 14; see also id. at 6 ("[T]he succession of IEPs developed for [Luke] during his kindergarten through second grade years reveal no highly remarkable difficulties with his special education in public schools."); id. ("[A]t school ... [Luke] seemed to make adequate progress."). The ALJ similarly found that "[d]uring kindergarten through his second grade year at Berthoud, [Luke] made progress with his special education and was meeting many of the goals and objectives in his IEPs." ALJ Decision at 4. Finally, the district court found that "a comparison of his third grade IEP and kindergarten IEP demonstrates that Luke progressed in several areas," Dist. Ct. Op. at 7, and held that the IHO's and ALJ's findings that "Luke made some progress on the goals contained in [his IEPs] ... is supported by a preponderance of the evidence on the record." Id.
Such past progress is, of course, not dispositive of the controlling question whether, going forward, the December 2003 IEP was reasonably calculated to confer some educational benefit, but it does strongly suggest that, modeled on prior IEPs that had succeeded in generating some progress, the December 2003 IEP was reasonably calculated to continue that trend. Moreover, given IDEA's emphasis on the importance of the process by which IEPs are created, see supra Part II.B.1, the fact that the school district incorporated into the new IEP virtually every one of the substantive goals recommended by Luke's parents and their experts — many of which expressly relate to improving Luke's generalization skills — is telling.
These tribunals reached a contrary judgment in this case only because, in their judgment, "whatever educational progress Luke made ... was meaningless if there was no strategy to ensure that those skills would be transferred outside of the school environment." D. Ct. Op. at 16.
Even if progress on generalization skills is not an inescapable component of all IEPs under federal law, Luke's parents
As it happens, however, the state regulations cited by Luke's parents simply specify that the "delivery system" by which the state provides special education services "shall include ... those services which enhance cognitive, communicative, physical and social-emotional development and teach students the skills critical to compensate for their disability .... [and] those services which are necessary to teach students to function independently or interdependently in current and future environments including school, home, employment and the community." 1 Colo. Code Regs. § 301-8, 2220-R-5.03(4) (2005). Far from giving any substantive definition to the sort of education that must be provided to every student on an individual basis, let alone guarantee generalization skills are addressed, these regulations merely specify some of the various services that special education programs should make available as a general matter. The very same regulation, in an earlier section, actually defines "appropriate education" in terms that very much reflect the statutory text of IDEA and comport with Rowley's holding that the educational benefits conferred under IDEA are highly individualized rather than standardized in any substantive way. See id. § 5.01(2) ("`Appropriate' education shall be the provision of educational services that meet the individual needs of children with disabilities as identified on the individualized educational programs (IEPs)."). We thus discern no educational standard imposed by state law that would guarantee the generalization of skills for all children.
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We sympathize with Luke's family and do not question the enormous burdens they face. Our job, however, is to apply the law as Congress has written it and the Supreme Court has interpreted it. Though IDEA is certainly evidence that Congress intends that States, acting through local school districts, provide assistance to disabled students and their families, the assistance that IDEA mandates is limited in scope. The Act does not require that States do whatever is necessary to ensure that all students achieve a particular standardized level of ability and knowledge. Rather, it much more modestly calls for the creation of individualized programs reasonably calculated to enable the student to make some progress towards the goals within that program. The findings of every factfinder in this case indicate that this standard has been met here. For this reason, we are constrained to reverse the district court's judgment and remand for further proceedings not inconsistent with this opinion.