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Boutelle v. Board of Education of Las Cruces Public Schools

United States District Court, D. New Mexico

May 9, 2019

DOMINIC BOUTELLE, as parent of L.B, a minor child, Plaintiff,



         THIS MATTER comes before the Court[1] upon “Plaintiff's IDEA Brief in Chief” (“Motion”). ECF 31.[2] The Motion is fully briefed. See ECFs 32 (Defendant's Response), 36 (Plaintiff's Reply). The fundamental issue before the Court is whether Defendant denied Plaintiff's son L.B. a free, appropriate public education (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA” or “the Act”), 20 U.S.C. §§ 1400 et. seq. Having meticulously reviewed the entire record, including the additional evidence submitted by Plaintiff, the Court concludes that Defendant did not deny L.B. a FAPE. Therefore, and for the reasons articulated below, the Court will AFFIRM the decision of the Due Process Hearing Officer and DENY Plaintiff's Motion.


         Plaintiff's son, L.B., attended public school in Las Cruces, New Mexico, from kindergarten until he was about halfway through the fourth grade. Administrative Record (“AR”) 25-8, 4.[3] He then moved to Arizona to live with his mother until the end of fifth grade. AR 25-4, 4-5. Around the summer of 2016, and a few months before his twelfth birthday, he moved to back Las Cruces to live with his father and then re-enrolled in the Las Cruces Public School District (“LCPS”) for his sixth-grade year. AR 25-5, 179; 25-4, 5.

         A. Intervention Efforts

         On September 15, 2016, a teacher told L.B. that she would call his father about a parent-teacher conference, and L.B. said he would kill himself if she called his father again. AR 25-6, 6. Upon further investigation, school officials concluded that the threat was unfounded, as L.B. later stated he was simply angry about an incident in class. AR 25, 37-39, 47. They nevertheless explained to Plaintiff various options available to assist L.B., including having a formal committee review L.B.'s behavior issues and make recommendations, which could include a psychological screening and a full psychological evaluation. AR 25-4, 47-48. Plaintiff was open to these options and told school officials that L.B. felt abandoned by his mother, something Plaintiff believed was contributing to the behavioral issues that L.B. was exhibiting. Id.; AR 25, 47.

         Although L.B. had “As and Bs” in all of his classes, school officials remained concerned about his behavior-specifically his “non-compliance” and his “bullying/intimidating” behaviors. AR 25-6, 12, 14.[4] Consequently, on October 11, 2016, school officials held a formal committee meeting, which Plaintiff attended, to discuss potential options for helping L.B. succeed. Id. at 11-17. This meeting was held pursuant to the procedures established by New Mexico's “three-tier model of student intervention . . . for students who demonstrate a need for educational support for learning or behavior.” N.M. Code §[5] At the meeting, Plaintiff mentioned that he did not believe his son actually had ADHD. AR 25-6, 17.[6] Instead, as the school documented in its record of this meeting, the conclusion was that L.B. appeared to be suffering from “separation anxiety from mom” and “chronic stressors.” Id. at 14, 16. The school agreed to do a “Functional Behavior Assessment, ” implement “positive behavioral supports, ” and-should such support prove ineffective-a psychological screening, which Plaintiff consented to on behalf of L.B. Id. at 12; AR 25-5, 441. In November 2016, this assessment found that L.B.'s behavior stemmed from “a performance deficit and the function for attention seeking” and made various recommendations to help teachers better work with him. AR 25-5, 442; AR 25-8, 24.[7]

         Around January and February 2017, teachers indicated that these interventions began to lose their effectiveness and, aside from one class, L.B.'s behavior generally began to worsen. AR 25, 32, 63; AR 25-1, 15, 53; AR 25-6, 66.[8] Consequently, the school held another committee meeting on February 14, 2017, which resulted in the creation of a “Behavior Intervention Plan” and the decision to obtain a psychological screening for L.B. AR 25-8, 46-49. Shortly thereafter, however, the school and Plaintiff agreed to hold off on the screening, as Plaintiff was already in the process of having a private comprehensive evaluation performed on L.B. AR 25-3, 57.

         Near the beginning of March 2017, L.B. received his sixth suspension of the school year, this time for creating an “unsafe condition” by throwing tape in class. AR 25-6, 149-54. After having already thrown the tape twice and receiving two warnings from the teacher, L.B. threw the tape a third time and struck another student, causing redness under the student's eye that required treatment from the school nurse. Id. at 154. A few days later, on March 8, 2017, a teacher documented L.B.'s behavior in class that day, noting some positive behaviors and a significant amount of negative behaviors:

Today was a good day for [L.B.] in that he completed his warm-up in a timely manner, did the day's assignment to 81% mastery, and didn't play a single computer game. However, it did come with some negatives: 15 uses of profanity or near profanity, 12 outbursts (screams, grunts, or noises not counted with profanity and granting a lot of leeway with talking), 1 belch, and 2 incidents of messing with a classmate's computer (unplugging it and then pulling the monitor by the cord).

AR 25-6, 146.[9]

         B. Long-Term Suspension

         On April 19, 2017, Plaintiff provided the school with a “Comprehensive Neuropsychological Examination, ” which studied L.B.'s neurological and psychiatric systems and for which Plaintiff was charged $1, 866.60. AR 25-6, 168-83. The examination did not diagnose L.B. with the neurological condition of Tourette syndrome (“TS”), but rather diagnosed him with ADHD, disruptive mood dysregulation disorder, post-traumatic stress disorder, and “parent-child relational” and “academic or educational” problems. AR 25-4, 72, AR 25-6, 181, 349.

         On this same day, while walking to the bus after school, L.B. began throwing rocks at students. AR 25-6, 159-60. After investigating the incident-including interviewing witnesses, collecting statements, and completing a police report-the principal concluded that L.B. had intentionally thrown several rocks at two students and injured them. Id. at 159-64; AR 25-8, 62-67. Specifically, he found that L.B. struck one student's lower body with four rocks (which one student stated were golf ball sized) and then-after stating something along the lines of “do you think I can hit him with a rock?”-struck another student from behind in the “head/neck” area with a rock. AR 25-6, 159-60. L.B. was immediately suspended for ten days and, after a long-term suspension hearing, was placed on long-term suspension for six months. Id. at 166; AR 25-8.

         About one week later, after formally considering the private examination provided by Plaintiff, the school's “Multidisciplinary Evaluation Team” concluded that L.B. was eligible for “Special Education as a child with a disability” due to the conditions of “Other Health Impairment” (based on ADHD) and “Emotional Disturbance.” AR 25-8, 68-82; AF 25-5, 448. The school then conducted a “Manifestation Determination” review and found that the behavior for which L.B. was to be suspended long-term was “not a manifestation of his disabilities, ” a finding that must be made before such a suspension can take effect. AR 25-6, 196-99. Afterwards, in early May 2017, the Individualized Education Program (“IEP”) team held a meeting, which Plaintiff attended, and developed an IEP for L.B. that would provide services to him while he attended the CrossRoads alternative school during his long-term suspension. Id. at 204-21. The IEP included L.B. spending 80 percent or more of the day in the regular classroom, a “behavior intervention plan, ” 50 minutes of case management service per week, and weekly mental health services. Id. at 220.

         Plaintiff was given the option of having L.B. simply stay home for the remainder of the school year, as the CrossRoads special education teacher believed it would not be productive for L.B. to enter a brand-new environment so close to the end of the school year. AR 25-4, 30. Plaintiff thus chose to have L.B. stay home for the remaining few weeks of his sixth-grade school year and then, after the summer break, attend CrossRoads for the start of his seventh-grade year. Id. Plaintiff, however, still had concerns about this alternative school, specifically that L.B. would be associating with-and influenced by-the “delinquents” who were sent there. Id. at 31. Sometime over the summer break, Plaintiff's real estate attorney mentioned to him that TS could sometimes be associated with ADHD, which prompted Plaintiff to begin researching on his own whether L.B. could also have TS. Id. at 43.

         C. Due Process Hearing and Decision

         Shortly thereafter, at the end of July 2017, Plaintiff requested an administrative due process hearing under the IDEA. AR 25-5, 9-24. Plaintiff claimed that LCPS denied L.B. a FAPE, grounding this claim primarily on the assumptions that L.B. indeed had TS, that many of L.B.'s behavioral issues had been manifestations of TS, and that the school should have suspected and then accounted for the possibility that L.B. could have had TS. Id. at 17-22. Plaintiff proposed resolving his complaint through, inter alia, LCPS returning L.B. to his home school, reimbursing Plaintiff for $1, 866.60 in medical evaluation expenses, and paying for a TS evaluation, along with attorney fees. Id. at 22-24.

         The parties participated in a five-day due process hearing before an impartial Due Process Hearing Officer, Morgan Lyman, Esq., in September 2017. Id. at 426. In November 2017, the hearing officer issued a decision in favor of LCPS. AR 25-5, 483-86. In doing so, however, he first found certain procedural errors but ultimately found such errors to be harmless. Id. at 486.

         1. Screening for a Disability

         The hearing officer found two procedural violations under the IDEA for the school's failure on two separate occasions to make “a referral for a screening or to a licensed healthcare professional for an assessment related to a disability.” Id. at 457. First, the hearing officer found that at the formal meeting on February 14, 2017, where the school decided to proceed with a psychological screening, a “suspicion of a disability” had arisen such that the school was “procedurally bound to proceed” with the screening. Id. Although Plaintiff and the school agreed soon afterwards to “hold off” on the screening pending the private evaluation, the hearing officer reasoned that the “identification and evaluation burden” nevertheless remained with the school. Id. at 443, 457.

         Second, the hearing officer found that as of March 8, 2017, the school “suspected that [L.B.] had a disability potentially for TS for which a screening would have been appropriate” based on L.B.'s classroom behavior that day. AR 25-5, 445-46. He also found that “other behaviors exhibited by [L.B.]” before March 8, 2017, “did not amount to a suspicion for a referral.” Id. at 446. In making these findings, he gave significant weight to the testimony of Martin Greer, Ph.D., the school's supervising psychologist, who is also in private practice. Id. at 445, 454. Dr. Greer opined that L.B.'s behavior that day “could raise a suspicion for further screening and possible evaluation for [TS]” but that other behaviors exhibited by L.B. “did not amount to a suspicion.” Id. at 445; AR 25-2, 54-55.[10]

         The hearing officer then proceeded to the second prong of his analysis: determining whether these two procedural violations established a denial of FAPE. AR 25-5, 457-62. Based on the full record, the hearing officer found that Jo Velasquez, Ph.D., the psychologist who had performed the private evaluation of L.B., had “performed a complete neurological and psychological evaluation which had the capacity to diagnose TS, but did not result in a diagnosis of TS.” Id. at 460 (emphasis added). The hearing officer concluded that Plaintiff “did not meet his burden to show that the March 8, 2017 ‘suspicions' would have otherwise changed the validity of [this private evaluation], which did not result in a diagnosis of TS.” Id. at 461. He further concluded that Plaintiff's own private and timely evaluation thus “supplanted” both of these violations by fulfilling the “underlying purpose” of the procedural rule at issue: “the required screening, assessment, or evaluation.” Id. He further reasoned that these two violations did not compromise L.B.'s right to a FAPE, seriously hamper Plaintiff's opportunity to participate in the decision-making process, or cause the deprivation of an educational benefit. Id. at 461-62. Therefore, the hearing officer held that these violations did not result in a denial of FAPE. Id. at 457, 460-62.

         The hearing officer further concluded that Plaintiff could not be reimbursed for the $1, 866.60 he spent on the private evaluation. Id. at 465. He reasoned that there were only two avenues for such a reimbursement: (1) as a remedy for a denial of FAPE, or (2) if the evaluation was an “Independent Educational Evaluation, ” which must be specifically requested after “the parent disagrees with an evaluation obtained by the public agency.” Id.; 34 C.F.R. § 300.502. And because there was neither a corresponding FAPE denial nor an Independent Educational Evaluation, he denied Plaintiff's request. AR 25-5, 465-66.

         2. Suspension for Rock Throwing

         The hearing officer upheld the long-term suspension of L.B. Id. at 481-83. He found that L.B. intentionally threw rocks at other students, causing injury to two of them, and that “the reason for the suspension . . . was because [L.B.] had created an unsafe condition by [this] rock throwing event.” Id. at 447, 468. He further found that the “Manifestation Determination” team considered “only the rock throwing event”-and not L.B.'s prior misbehavior incidents-when it concluded that L.B.'s conduct was not a manifestation of his disability. Id. at 468-69.

         But the hearing officer also discerned a procedural violation because this team and Plaintiff were not provided a copy of three witness statements from other students and because the team did not receive a copy of the “Long Term Suspension Packet.” Id. at 472-73. The hearing officer found that this was a FAPE violation, as it “significantly impeded [Plaintiff's] opportunity to participate in the Manifestation Determination IEP process.” Id. at 473. Nevertheless, the hearing officer did not award an equitable remedy for this violation, as he found that Plaintiff was unable to show either that the underlying misconduct (i.e., intentionally throwing rocks at and injuring other students) did not occur or that a different result would have occurred had these witness statements and suspension packet materials been provided. Id. at 447, 482-83.

         D. Additional Relevant History

         Shortly before the due process hearing, Plaintiff attempted to schedule an evaluation of L.B. for TS at the “Tourette Center for Excellence at Baylor.” Pl.'s Mot. 3, ECF 31. During the hearing, Plaintiff argued that L.B. displayed symptoms of TS, a condition defined by “involuntary, repetitive movements and vocalizations, ” during the school year. Id. at 1-3, 18, 27; AR 25-5, 453; AR 25-6, 312.[11] The evaluation for TS, however, occurred after the hearing, and the resulting report, which the school incorporated into L.B.'s IEP the following year, was issued after the hearing officer's decision. Id. [12]

         One month after the hearing officer's decision, Plaintiff filed suit in this Court, claiming LCPS denied L.B. a FAPE and asking this Court to reverse the hearing officer's decision and award an equitable remedy. Pl.'s Compl. 1, 12, ECF 1. As an equitable remedy, Plaintiff requests that the Court order LCPS to (1) correct L.B.'s educational records to reflect that he was “erroneously punished, ” (2) reimburse Plaintiff for the costs of L.B.'s neuropsychological and TS evaluations, and (3) update L.B.'s IEP consistent with his TS evaluation. Pl.'s Mot. 27.[13]


         Plaintiff claims that LCPS denied L.B. a FAPE in the following ways: (1) not evaluating L.B. for a disability during the fall of 2016, (2) relying in the formation of L.B.'s IEP on the private evaluation that L.B.'s father personally procured, (3) not having the IEP in place until later in the 2016-17 school year, and (4) placing L.B. on long-term suspension. Pl.'s Mot. 11-26.

         Finally, Plaintiff contends that the hearing officer wrongly excluded certain evidence as irrelevant, specifically pointing to his refusal to consider testimony about the programs at CrossRoads and documentation that showed TS treatment center locations and a scheduled appointment at one of those centers. Id. at 3 n.4, 26; AR 25-4, 31-33; AR 25-5, 450, 452-53.

         III. ...

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