Albuquerque Public Schools Board of Education v. CLAIRE ARMSTRONG; DANIEL ARMSTRONG, as Parents of D.A., student (a minor)

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
ALBUQUERQUE PUBLIC SCHOOLS
BOARD OF EDUCATION,
Plaintiff - Appellant,
v.
CLAIRE ARMSTRONG; DANIEL
ARMSTRONG, as Parents of D.A., student
(a minor),
Defendants - Appellees.
------------------------------
COUNCIL OF PARENT ATTORNEYS
AND ADVOCATES, INC.,
Amicus Curiae.
No. 22-2012
(D.C. No. 1:21-CV-00396-WJ-JHR)
(D.N.M.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, McHUGH, and MORITZ, Circuit Judges.
_________________________________
Claire and Daniel Armstrong (“Parents”) filed an administrative request for a
due process hearing under the Individuals with Disabilities Education Act (“IDEA”),
20 U.S.C. § 1400 et seq., claiming Albuquerque Public Schools (“APS”) failed to
* This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
FILED
United States Court of Appeals
Tenth Circuit
December 12, 2022
Christopher M. Wolpert
Clerk of Court
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provide a free, appropriate public education (“FAPE”) to their minor son, D.A., who
suffers from severe dyslexia. A Due Process Hearing Officer (“DPHO”) conducted a
hearing and determined that APS had failed to provide D.A. a FAPE. The DPHO
fashioned an equitable remedy requiring APS to provide D.A. with one-on-one
reading support throughout the week from a reading therapist, subject to Parents’
approval. APS responded by filing a complaint in the district court, arguing the
DPHO erred in her analysis and APS had not denied D.A. a FAPE. The district court
disagreed and affirmed the DPHO’s conclusions of law and selected remedy. Now,
before this court, APS argues for the first time that the equitable remedy fashioned by
the DPHO and affirmed by the district court was an abuse of discretion. This
argument fails because APS waived any argument directed at the selected remedy by
not raising it before the district court and not arguing plain error on appeal.
I. BACKGROUND
We begin by providing a brief overview of the IDEA framework and then
proceed to the relevant factual and procedural background. Parents and APS disputed
many aspects of D.A.’s education before the DPHO and the district court, engaging
on the issue of whether APS had met its obligation to provide D.A. with a FAPE. On
appeal, however, APS does not challenge the district court’s determination that APS
denied D.A. a FAPE and instead argues only that the chosen remedy was an abuse of
discretion. Accordingly, we limit our review of the factual history to the facts
relevant to this issue.
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A. Overview of the IDEA
“The Individuals with Disabilities Education Act (IDEA or Act), 84 Stat. 175,
as amended, 20 U.S.C. § 1400 et seq., ensures that children with disabilities receive
needed special education services.” Fry v. Napoleon Cmty. Schs., 137 S. Ct. 743, 748
(2017). Specifically, the Act “requires States receiving federal funding to make a
‘free appropriate public education’ (FAPE) available to all children with disabilities
residing in the State.” Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 232 (2009)
(quoting 20 U.S.C. § 1412(a)(1)(A)). The IDEA defines a FAPE as:
special education and related services that--
(A) have been provided at public expense, under public supervision and
direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or secondary
school education in the State involved; and
(D) are provided in conformity with the individualized education
program required under section 1414(d) of this title.
20 U.S.C. § 1401(9). To ensure that all children have access to a FAPE, the IDEA
requires schools to create individualized education programs (“IEPs”) with input
from the children’s parents. Sch. Comm. of Town of Burlington, Mass. v. Dep’t of
Educ. of Mass., 471 U.S. 359, 368–69 (1985). Congress anticipated school officials
and parents may at times have disputes about the provision of a FAPE. And because
“in any disputes the school officials would have a natural advantage, Congress
incorporated an elaborate set of what it labeled ‘procedural safeguards’ to insure the
full participation of the parents and proper resolution of substantive disagreements.”
Id. at 368. Under these procedural safeguards, parents may seek an “impartial due
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process hearing” to resolve their complaints. Id. at 369 (quoting 20 U.S.C.
§ 1415(b)). “The Act also provides for judicial review in state or federal court to
‘[a]ny party aggrieved by the findings and decision’ made after the due process
hearing.” Id. (quoting 20 U.S.C. § 1415(e)(2)).
B. Factual Background1
Parents first noticed their son, D.A., was struggling with reading skills when
he was in the first grade. D.A. was evaluated for learning disabilities in the second
grade, and the evaluation revealed that D.A. suffered from “specific learning
disability in basic reading, reading fluency, and math calculation and that he had the
characteristics of dyslexia.” App. at 18. The evaluator determined D.A.’s dyslexia
was severe. Despite D.A.’s struggles with reading and writing, D.A.’s teachers
recognized he was a bright, capable student.
Over the following years, Parents met with APS employees regularly through
the IEP process, often disagreeing with APS about what interventions D.A. needed.
On several occasions, APS denied Parents’ requests for a dyslexia therapist to work
with D.A. and for him to receive one-on-one reading instruction. APS employees told
Parents that rather than using dyslexia therapists, APS relied on its teaching staff to
provide its chosen reading curriculum for dyslexic students, SPIRE. APS also
claimed that D.A. benefitted from reading instruction made available to all students
through the iReady computer software program. Although D.A. also struggled with
1 These facts are drawn from the DPHO’s findings of fact.
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writing due to his dyslexia, APS did not create writing-related goals or writing-
specific interventions in D.A.’s IEPs.
D.A. continued to struggle with basic reading and writing from the third
through the sixth grades. Due to D.A.’s lack of progress, Parents found a certified
dyslexia therapist to work with D.A. outside of school from 2017 through 2020.
Nonetheless, D.A.’s struggles intensified when he made the transition to middle
school in the sixth grade, and the schools turned remote due to the Covid-19
pandemic. Much of D.A.’s school-conducted testing on reading level over the years
was not reliable because the teachers conducting the tests often read to him,
invalidating the results. Based on the limited valid test results, D.A. remained at
approximately a first-grade reading level from the third through the sixth grades,
despite a strong oral vocabulary and good word comprehension.
C. Procedural Background
Frustrated by D.A.’s lack of progress and APS’s unwillingness to provide one-
on-one instruction or dyslexia therapists to work with D.A., Parents filed a request
for a Due Process Hearing with the Local Educational Agency—the New Mexico
Public Education Department. A DPHO conducted a five-day hearing and, as relevant
to this appeal, considered (1) “whether any of the actions and inactions of APS
denied [D.A.] a free and appropriate public education (“FAPE”),” and (2) “[w]hether
[D.A.] is entitled to equitable remedy and what that remedy should be.” Id. at 15. The
DPHO ultimately determined that APS had denied D.A. a FAPE and D.A. was
entitled to an equitable remedy.
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In fashioning an equitable remedy for D.A., the DPHO noted she was skeptical
of APS’s ability to determine an appropriate remedy for D.A. when the school district
had failed to provide D.A. a FAPE over the last three years. The DPHO also noted
that because D.A. had been denied a FAPE for several years, he would now need a
more intensive intervention to make up for the lost time. Id. As an equitable remedy,
the DPHO ordered APS to:
provide [D.A.] 1/1 daily reading instruction during the school day (in
place of an elective and for 60 minutes daily, 5 days per week) at the
school campus (or remotely if campuses are closed due to public health
orders) from a Certified Academic Language Therapist (“CALT”) or
dyslexia therapy-level trained instructor . . . . The selected contractor or
employee must be acceptable to [Parents]. The selected contractor or
employee will be given authority by APS to select a reading instruction
curriculum specific to dyslexia therapy (e.g., Sounds and Syllables or
Wilson Reading) for a student of D.A.’s severity and age; with such
reading instruction to continue through [D.A.’s] APS education until
completion of the program whether that be in two school years or more,
and at APS’s expense; and with such reading instruction to also be
available for [D.A.] each summer beginning with summer 2021; with
attendance of the selected contractor or employee at all IEP meetings.
Id. at 68.
APS filed a complaint in the United States District Court for the District of
New Mexico seeking judicial review of the DPHO’s decision. In the complaint, APS
argued that “the DPHO erred in finding that [Parents] have me[t] their burden of
proof that [APS] deprived D.A. of a free appropriate public education.” Id. at 10.
APS argued the DPHO’s factual findings and legal conclusions supporting her
determination that D.A. was denied a FAPE were erroneous. Parents responded,
asking the district court to “uphold the decision of the [DPHO] and deny APS’s
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appeal.” Id. at 74. In its brief before the district court, APS raised five arguments:
(1) Parents failed to meet their burden of proof before the DPHO; (2) the DPHO
erred in her application of the preponderance of the evidence standard; (3) the DPHO
erred in determining APS failed to provide D.A. with a FAPE; (4) the DPHO erred in
her FAPE determination by not recognizing APS’s discretion in choice of
methodology; and (5) the DPHO erred by not recognizing APS’s affirmative defense
based on D.A.’s attendance issues.
The district court rejected these arguments, affirming the DPHO’s decision.
Specifically, the district court agreed with the DPHO that (1) Parents had met their
burden to “prove that D.A.’s teachers failed to provide SPIRE instruction, or any
reading instruction, with fidelity,” id. at 157 (quoting App. at 52), and (2) “APS
failed to ensure that [D.A.’s] teachers had the professional training, professional
development, and oversight throughout the school year, to ensure that they had the
capacity to provide the instruction [D.A.] required to enable him to make progress
appropriate in light of his circumstances,” id. at 162–63 (quoting App. at 56). The
district court also rejected APS’s arguments based on D.A.’s attendance, “declin[ing]
to release the school from its responsibility to provide a FAPE to a student whose
disability makes it particularly challenging or frustrating for him to attend his online
courses regularly.” Id. at 167. The district court determined APS had denied D.A. a
FAPE, stating “[t]he education that APS provided to D.A., with all its irregularities,
lack of access to appropriate technology, untrained instructors, and lack of fidelity to
the SPIRE program, [wa]s not ‘reasonably calculated to enable [him] to make
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progress appropriate in light of [his] circumstances.”’ Id. at 171 (quoting Endrew F.
ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017)). The
district court concluded its opinion by “affirm[ing] DPHO’s ultimate conclusions on
each issue as well as the DPHO’s decision regarding a remedy.” Id. at 173.
APS timely filed a notice of appeal.
II. DISCUSSION
APS appeals the district court’s decision affirming the DPHO’s decision and
selection of remedy. But APS presents an entirely new argument on appeal. APS
accepts the district court’s determination that APS denied D.A. a FAPE and instead
argues the DPHO abused her discretion in fashioning an equitable remedy. See
Appellant’s Br. at 16. Parents contend APS waived any challenge to the remedy
selected by the DPHO, and affirmed by the district court, by not challenging the
remedy before the district court. 2 In its reply brief, APS counters that it “has at all
2 The Council of Parent Advocates and Attorneys (“COPAA”) filed a motion
seeking leave to submit an amicus brief in support of Parents, which this court’s
motions panel provisionally granted. See COPAA’s Motion for Leave to File Amicus
Brief, Albuquerque Pub. Schs. Bd. Of Educ. v. Armstrong, No. 22-8004. Federal Rule
of Appellate Procedure 29 provides that “amicus curiae [other than the government]
may file a brief only by leave of court or if the brief states that all parties have
consented to its filing.” Fed. R. App. P. 29(a)(2). Here, APS does not consent to the
filing. Accordingly, COPAA may file its brief only by leave of this court. The Tenth
Circuit has granted motions for leave to file amicus briefs when the motions comply
with Federal Rule of Appellate Procedure 29, the brief provides the court with useful
information, and the “briefing is relevant to the disposition of the case.” New Mexico
Oncology & Hematology Consultants, Ltd. v. Presbyterian Healthcare Servs., 994
F.3d 1166, 1176 (10th Cir. 2021). COPAA’s amicus brief complies with Federal Rule
of Appellate Procedure 29, but it is not useful to the resolution of this case because
the brief addresses the merits of APS’s arguments, which we do not reach.
Accordingly, we deny COPAA’s motion for leave to file the amicus brief.
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times challenged the [DPHO’s] decision as being overly broad and unsupported by
the facts and the law,” and merely “finely tuned” its argument on appeal. Reply at 2.
When an appellant raises an argument for the first time on appeal, we deem it
“waived” if the argument “was intentionally relinquished or abandoned in the district
court,” and deem it “forfeited” “if the theory simply wasn’t raised before the district
court.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127–28 (10th Cir. 2011). A
party preserves an issue for appeal when the party “alert[s] the district court to the
issue and seek[s] a ruling—a party does not preserve an issue merely by presenting it
to the district court in a vague and ambiguous manner, or by making a fleeting
contention before the district court.” GeoMetWatch Corp. v. Behunin, 38 F.4th 1183,
1206 (10th Cir. 2022) (brackets, ellipses, and internal quotation marks omitted). A
party cannot preserve an argument for appeal by “rais[ing] [it] in the District Court in
a perfunctory and underdeveloped manner.” In re Rumsey Land Co., LLC, 944 F.3d
1259, 1271 (10th Cir. 2019) (quotation marks omitted).
Waived arguments are not considered at all on appeal, and this court “will
reverse a district court’s judgment on the basis of a forfeited theory only if failing to
do so would entrench a plainly erroneous result.” Richison, 634 F.3d at 1128. “If an
appellant does not explain how its forfeited arguments survive the plain error
standard, it effectively waives those arguments on appeal.” In re Rumsey Land Co.,
LLC, 944 F.3d at 1271; see also Hayes v. SkyWest Airlines, Inc., 12 F.4th 1186, 1201
(10th Cir. 2021) (“When the appellant fails to argue for plain error, we consider the
theory waived and not entitled to review.”); Richison, 634 F.3d at 1131 (“[F]ailure to
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argue for plain error and its application on appeal—surely marks the end of the road
for an argument for reversal not first presented to the district court.”).
APS (1) forfeited its remedy argument by not raising the argument before the
district court and (2) subsequently waived it by failing to argue for plain error on
appeal. In its complaint before the district court, APS challenged the DPHO’s
conclusions of law and some associated findings of fact—not her chosen remedy.
Specifically, APS challenged several of the DPHO’s conclusions that APS failed to
provide D.A. with a FAPE at various points in his education. The closest APS came
to disputing the DPHO’s chosen remedy in its complaint was its allegation stating:
In paragraph 101, the DPHO erred in finding that [APS] failed to design
and implement a strategy to provide the student with FAPE and to
remedy this, [APS] must hire additional personnel to provide services to
the student. This conclusion of law includes erroneous and conclusory
statements not supported by the evidence.
App. at 12. Although APS disputed this one conclusion of law related to the chosen
remedy in its complaint, APS did not allege that the DPHO abused her discretion in
crafting the remedy or suggest any alternative remedy for the denial of a FAPE.
Tellingly, in the prayer for relief section of the complaint, APS sought “revers[al] of
the DPHO’s Decision insofar as the DPHO granted Petitioners relief” and “[a]
declaratory judgment holding that [APS] did not deprive D.A. of a free appropriate
public education for any time relevant hereto and in particular the time period
covered by the complaint.” Id. Beyond arguing the DPHO’s decision should be
reversed entirely, APS did not challenge any specific aspects of the remedy. Id.
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APS’s briefing before the district court also included no arguments disputing
the remedy selected by the DPHO. As Parents note on appeal, APS did not even use
the word “remedy” in either of its briefs before the district court. Instead, APS
argued (1) Parents failed to meet their burden of proof before the DPHO; (2) the
DPHO erred in its application of the preponderance of the evidence standard; (3) the
DPHO erred in determining APS failed to provide D.A. with a FAPE; (4) the DPHO
erred in its FAPE determination by not recognizing APS’s discretion in choice of
methodology; and (5) the DPHO erred by not recognizing APS’s affirmative defense
based on D.A.’s attendance issues. Not surprisingly, the district court’s opinion and
order affirming the DPHO’s decision addressed these five arguments but included no
analysis of the DPHO’s chosen remedy.
Further, Parents’ brief on appeal made APS aware of this preservation issue.
But in APS’s reply brief, it did not identify any place in the record where APS
“alert[ed] the district court to the issue and [sought] a ruling.” GeoMetWatch Corp.,
38 F.4th at 1206. APS claims to have raised its remedy argument throughout these
proceedings, but tellingly does not support that claim with any citations to the record.
According to APS, “[it] has finely tuned its appeal to address those specific portions
of the remedy which it finds to be outside of the applicable law and regulations.”
Reply at 2. But APS cannot finely tune its appeal by raising an issue on appeal that it
did not present to the district court. Before the district court, APS argued only that
the DPHO’s determination that APS denied D.A. a FAPE should be reversed, causing
there to be no remedy at all. This “vague, arguable reference[]” to the remedy issue
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was not sufficient to preserve the argument for appeal. See In re Rumsey Land Co.,
LLC, 944 F.3d at 1271.
Despite raising the remedy issue for the first time on appeal, APS made no
plain error argument in either its opening or reply brief. Accordingly, APS has
waived its argument challenging the DPHO’s remedy decision by failing to argue for
plain error review on appeal. See id. (“If an appellant does not explain how its
forfeited arguments survive the plain error standard, it effectively waives those
arguments on appeal.”). Because this is the only argument APS raises on appeal, we
affirm the district court’s decision without reaching the merits.
III. CONCLUSION
We AFFIRM the district court’s order and judgment.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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