Court Opinions: 10th Circuit Court of Appeals Opinion for Dec. 20

The 10th Circuit Court of Appeals

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

D.T. v. Cherry Creek School

D.T. and his family moved from Florida to Colorado in 2015. Shortly after, he began his freshman year at Cherokee Trail High School in Aurora, Colorado. Cherokee Trail has a larger student body than D.T. was used to, and although he performed well academically his first year, he expressed difficulty connecting with peers and teachers. 

In January 2016, D.T.’s mother emailed his school counselor Nick Jasurda, conveying concern about D.T.’s well-being. She described her son as depressed and struggling to acclimate to the new school. D.T. completed his freshman year with mostly As and Bs. 

During his sophomore year, D.T.’s grades began declining, including failing his spring honors English course after receiving a D in the fall. Jasurda recommended D.T. switch to grade-level English after he received the D, but D.T. declined. D.T. also experienced strain outside the classroom, indicated by an “after-school concern,” where a welfare check was conducted.  

In April 2017, D.T.’s mother sent Jasurda an email relaying D.T’s struggles with suicidal ideation and a recent incident where he attempted to jump in front of a car. The next day, the school psychologist Dr. Nick Liguori, conducted a risk assessment and concluded D.T. was of high concern. Liguori referred him to a crisis center for follow-up and provided his mother with a list of therapists and a financial assistance group for mental health counseling.

In May, his mother emailed Liguori saying D.T. had “turned things around” but had experienced distress at home. She added he wouldn’t cooperate with the recommended therapists. 

In the fall semester of his junior year in September 2017, D.T.’s mother emailed Jasurda, reiterating her concerns, after which Jasurda met with D.T. Three days later, after a fight with his parents, D.T. left late at night and checked into a hospital the following morning for mental health evaluation and inpatient psychiatric treatment. He was later discharged with discharge notes recommending individual therapy and a transition meeting for going back to school. Liguori met with D.T. and his mother and made a re-entry plan. 

Oct. 11, 2017, D.T.’s mother emailed Liguori and Jasurda requesting a 504 plan. Like the Individuals with Disabilities Education Act or IDEA, Section 504 is a federal civil rights statute that requires schools to develop a plan to give kids with disabilities the support they may need. Liguori offered a preliminary meeting but noted that a formal 504 review would take longer to set up. Two days later, D.T.’s mother met with Liguori to set up more immediate academic support. The school referred D.T. to a teacher who specialized in helping students with organizational skills, but D.T. didn’t respond. 

On Nov. 10, 2017, a student reported D.T. had threatened to shoot up the school. School officials convened a threat assessment, where D.T. admitted to the statements but denied any desire to hurt anyone. After being dismissed, he called his mother and said he was going to hurt himself and was admitted to a hospital for inpatient psychiatric treatment. When he was discharged, the hospital recommended an Individualized Education Program and noted he wasn’t a threat to others but struggled with his own safety. 

D.T. was suspended, then expelled from Cherokee Trail and transferred to the district’s home/hospital program. Liguori conducted a preliminary psychological assessment as part of an evaluation for special education services Nov. 17, 2017, and noted he might benefit from added support to address his social and emotional needs. 

Dec. 13, 2017, the district held a meeting to determine whether D.T. was eligible for special education services under IDEA, and the group concluded he met the criteria for a child with a serious emotional disability, or SED. The team developed an IEP with academic accommodations and a behavior intervention plan. He eventually transferred to a high school in the Denver Public School District and graduated in May 2019. 

Through his mother, D.T. filed a due process complaint with the Colorado Department of Education on April 23, 2019. The complaint claimed the district knew or should have known he suffered from a SED as early as April 2017. D.T. argued the district violated its child find duty required by IDEA by not commencing IEP procedures until November 2017. An administrative law judge in the Colorado Office of Administrative Courts found there was insufficient evidence for SED qualifying conditions until he threatened to shoot up the school. 

D.T. then brought a civil action in district court, where the court agreed with the ALJ’s findings and ruled the district didn’t deny him access to a free, appropriate public education as required by IDEA. D.T. appealed the district court decision and asked the 10th Circuit Court of Appeals to conclude the district violated its obligation to identify students with disabilities who require supplementary academic support.  

The 10th Circuit affirmed the district court’s decision and ruled that throughout his enrollment at Cherokee Trail, the district acted reasonably to preserve his access to the benefit of his general education. The 10th Circuit found there wasn’t enough evidence within the school of a SED prior to the shooting threat, and the district’s duty to provide D.T. with special education services didn’t begin until his threat to the school. 

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