R. B. v. EDU-HI, et al

Filing

FILED PER CURIAM OPINION (ALEX KOZINSKI, MICHAEL DALY HAWKINS and CARLOS T. BEA) (Dissent by CTB) AFFIRMED in part, REVERSED and REMANDED in part. Costs to appellant. FILED AND ENTERED JUDGMENT. [10578643]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
R. E. B., individually and on behalf of
his minor child, J.B.,
Plaintiff-Appellant,
v.

No. 14-15895
D.C. No.
1:13-cv-00016DKW-BMK

STATE OF HAWAII DEPARTMENT OF
EDUCATION; KATHRYN MATAYOSHI,
in her official capacity as
Superintendent of the Hawaii Public
Schools,
Defendants-Appellees.

OPINION

Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Argued February 23, 2017;
Submitted September 13, 2017
Honolulu, Hawaii
Filed September 13, 2017
Before: Alex Kozinski, Michael Daly Hawkins
and Carlos T. Bea, Circuit Judges.
Per Curiam Opinion;
Dissent by Judge Bea

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SUMMARY*

Individuals with Disabilities Education Act
The panel affirmed in part and reversed in part the district
court’s judgment in favor of the Hawaii Department of
Education in an action brought under the Individuals with
Disabilities Education Act by a parent, individually and on
behalf of his child, a student receiving special education and
related services.
Plaintiff objected to an individualized education plan for
the student’s transition from a private school into public
kindergarten. The panel held that the case was not moot
because it could still grant effectual relief.
On the merits, reversing in part, the panel held that
transition services under the IDEA are not limited to students
exiting the public school system. Rather, where transition
services become necessary for disabled children to be
educated and participate in new academic environments,
these services must be included in individualized education
programs in order to satisfy the IDEA’s “supplementary aids
and services” requirement. The panel held that the
Department of Education violated the IDEA by failing to
address transition services in the proposed IEP.
The panel held that the Department of Education also
violated the IDEA by failing to specify in the IEP the least
restrictive environment during the regular and extended
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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school year. This infringed the parent’s opportunity to
participate in the IEP process and was therefore a denial of a
free appropriate public education.
Affirming in part, the panel held that the IEP was not
required to specify the qualifications of a one-on-one aide.
Finally, the panel held that the Department of Education
violated the IDEA by failing to specify Applied Behavioral
Analysis as a teaching methodology in the IEP because this
methodology was integral to the student’s education.
The panel remanded the case to the district court for
determination of the proper remedy.
Dissenting in part, Judge Bea agreed that the case was not
moot, and he agreed with the portions of the majority opinion
affirming the district court. Dissenting from the holdings that
found error, Judge Bea wrote that the Department of
Education responded to the plaintiff’s concerns about the
student’s transition, did not violate the IDEA’s least
restrictive environment requirement, and was not required to
specify the particular teaching methodology.

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COUNSEL

Keith H.S. Peck (argued), Law Office of Keith H.S. Peck,
Honolulu, Hawaii; Lawrence R. Cohen, Badger Arakaki LLC,
Honolulu, Hawaii; for Plaintiff-Appellant.
Gary S. Suganuma and Holly T. Shikada, Deputy Attorneys
General; David M. Louie, Attorney General; Office of the
Attorney General, Honolulu, Hawaii; for DefendantsAppellees.

OPINION
PER CURIAM:
We consider whether the district court erred in affirming
an administrative officer’s determination that J.B., an autistic
student protected by the Individuals with Disabilities
Education Act (“IDEA”), was denied a free appropriate
public education (“FAPE”).
FACTS
Before and during this lawsuit, J.B. attended the Pacific
Autism Center (“PAC”), a small private school for students
with autism and other special needs. During that time,
Hawaii Department of Education (“DOE”) personnel
convened to develop an Individualized Education Plan
(“IEP”) for J.B.’s transition from PAC into public
kindergarten. J.B. raised various objections to aspects of the
proposed IEP, but the presiding administrative hearings
officer found that the IEP was adequate. J.B. appeals from
the district court’s affirmation of that determination.

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DISCUSSION
As a threshold matter, DOE claims this case is now moot
because J.B. received relief beyond that originally requested.
J.B. initially sought reimbursement of PAC tuition for the
2012–13 school year, and DOE funded J.B.’s tuition at PAC
from 2012 until 2015. But a case is moot “only when it is
impossible for a court to grant any effectual relief whatever
to the prevailing party.” Decker v. Nw. Envtl. Def. Ctr.,
133 S. Ct. 1326, 1335 (2013) (citation omitted). J.B’s due
process complaint sought reimbursement for transportation
and compensatory education, in addition to reimbursement
for tuition at PAC. Because we can still grant effectual relief,
this case is not moot.
Turning to J.B.’s specific objections to the proposed IEP,
he first argues that DOE violated the IDEA procedurally by
refusing to address his father’s concerns about the transition
from PAC to a public school. Some Hawaii district courts
have noted that the IDEA mentions transition services only
with respect to students exiting the public school system,
20 U.S.C. § 1414(d)(1)(A)(i)(VIII)(bb), and thus inferred that
transition services need not be provided at any other time.
See J.M. v. Dep’t of Educ., Haw., 224 F. Supp. 3d 1071, 1091
(D. Haw. 2016); Rachel L. v. Haw. Dep’t of Educ., No. 1100756, 2012 WL 4472263, at *7 (D. Haw. Sept. 25, 2012)
(collecting cases). However, these opinions have read the
IDEA too narrowly and are to that extent overruled. The
statute provides that IEPs must include “supplementary aids
and services” that will allow children to “be educated and
participate with other children with disabilities and
nondisabled children[.]” 20 U.S.C. § 1414(d)(1)(A)(i)(IV).
Services that ease the transition between institutions or
programs—whether public or private—serve this purpose.

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Cf. Cal. Educ. Code § 56345(b) (codifying this broader
interpretation of IDEA requirements). Where transition
services become necessary for disabled children to “be
educated and participate” in new academic environments,
transition services must be included in IEPs in order to satisfy
the IDEA’s “supplementary aids and services” requirement.
Here, J.B.’s father’s transition-related concerns centered
on the “needed modifications to offset the changes anticipated
in J.B.’s program, such as the number of peers or daily
routines available to him[.]” J.B. was planning to move from
a private school into the public school system for the first
time, and these considerations were relevant to his
educational participation with other children. Thus, DOE
violated the IDEA by failing to address transition services in
the proposed IEP.
Second, J.B. claims that DOE violated the IDEA by
failing to specify in the IEP the Least Restrictive
Environment (“LRE”) during the regular and extended school
year. The IEP “must include . . . [a]n explanation of the
extent, if any, to which the child will not participate with
nondisabled children in the regular class” and “the anticipated
frequency, location, and duration of [the special education]
services and modifications.” 34 C.F.R. § 300.320(a)(5), (7).
J.B.’s IEP contained only the vague statement that J.B. would
“receive specialized instruction in the general education
setting for Science and Social Studies activities as deemed
appropriate by his Special Education teacher/Care
Coordinator and General Education teacher.”
This
improperly delegated the determination of J.B.’s placement
to teachers outside the IEP process. The language was also
too vague to enable J.B. to use the IEP as a blueprint for
enforcement. See Union Sch. Dist. v. Smith, 15 F.3d 1519,

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1526 (9th Cir. 1994) (“[A] formal, specific offer from a
school district will greatly assist parents in ‘present[ing]
complaints with respect to any matter relating to the . . .
educational placement of the child.’”) (second alteration in
original) (emphasis added) (citation omitted).
Moreover, the IEP didn’t detail “the anticipated
frequency, location, and duration” of the proposed specialized
instruction in J.B.’s Science and Social Studies activities, as
required by 34 C.F.R. § 300.320(a)(7). This fails to meet the
legally required threshold of specificity. DOE further failed
to discuss appropriately “(1) the educational benefits of
placement full-time in a regular class; (2) the non-academic
benefits of such placement; (3) the effect [J.B.] had on the
teacher and children in the regular class; and (4) the costs of
mainstreaming [J.B.].” Sacramento City Unified Sch. Dist.,
Bd. of Educ. v. Rachel H. ex rel. Holland, 14 F.3d 1398, 1404
(9th Cir. 1994). DOE’s cursory treatment of the Rachel H.
factors was demonstrated by J.B.’s being mainstreamed into
Mandarin—a class obviously inappropriate for him—but not
into Science or Social Studies. This “seriously infringe[d]”
J.B.’s father’s opportunity to participate in the IEP process
and was therefore a denial of a FAPE. See Doug C. v. Haw.
Dep’t of Educ., 720 F.3d 1038, 1043 (9th Cir. 2013) (citation
omitted).
Third, according to J.B., the IDEA required DOE to
specify in the IEP that J.B.’s one-on-one aide would have the
same qualifications as a contracted skills worker. But
“[n]othing in [20 U.S.C. § 1414(d)] indicates that an IEP
must specify the qualifications or training of service
providers.” S.M. v. Haw. Dep’t of Educ., 808 F. Supp. 2d
1269, 1274 (D. Haw. 2011). Nor is it established in the

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record that DOE agreed to provide such an aide at the IEP
meeting.
Finally, J.B. argues that DOE violated the IDEA by
failing to specify Applied Behavioral Analysis (“ABA”) as a
methodology in the IEP. DOE relies on our decision in J.L.
v. Mercer Island Sch. Dist., 592 F.3d 938, 952 (9th Cir.
2010), to argue that this was not required. But J.L.
recognized that “school districts should specify a teaching
methodology for some students, [while] for other students
‘IEPs may not need to address the instructional method to be
used because specificity about methodology is not necessary
to enable those students to receive an appropriate education.’”
Id. (citation omitted). In J.L’s case, educators found that
specificity wasn’t appropriate. Id. But here, the IEP team
discussed ABA at length and recognized that it was integral
to J.B.’s education. And ABA is widely recognized as a
superior method for teaching children with autism. See
Ariana Cernius, “No Imbecile at All”: How California Won
the Autism Insurance Reform Battle, and Why Its Model
Should Be Replicated in Other States, 10 Harv. L. & Pol’y
Rev. 565, 570–72 (2016). When a particular methodology
plays a critical role in the student’s educational plan, it must
be specified in the IEP rather than left up to individual
teachers’ discretion.
The dissent contends that, because teachers might have
needed to use multiple methodologies with J.B., it was
unnecessary for the IEP to mention ABA. But specifying
ABA in writing would not have precluded the use of other
methodologies. It simply would have ensured that ABA
would be consistently used in J.B.’s educational program,
since even the school district acknowledged that ABA should

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be part of J.B.’s education. The IEP’s failure to specify ABA
was thus a denial of a FAPE.
We remand to the district court for determination of the
appropriate remedy.
AFFIRMED in part, REVERSED and REMANDED
in part.
Costs to appellant.

BEA, Circuit Judge, dissenting in part:
Although I agree with the portions of the majority opinion
that affirm the district court, I respectfully dissent from the
holdings that find error and reverse.1 For the reasons stated
below, I would affirm in full rather than reverse in part.
1. The Transition Services Issue
J.B. (the student) had previously attended PAC, a private
school, and was going to attend Koko Head Elementary
School, a local public school, in the Fall. Before J.B.’s
transition to public school, the Hawaii Department of
Education (“DOE”) and R.E.B. (J.B.’s father) worked
together to develop an Individualized Education Plan (“IEP”)
for J.B. R.E.B. was concerned about the DOE’s plan for J.B.
to switch classrooms and teachers during the school day and
1

I also agree with the majority that the school district’s motion to
dismiss the case for mootness should be denied because it is still possible
for us to grant effective relief.

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that J.B. would receive less personal attention from his
teachers than he received at PAC. R.E.B. wanted the school
district to provide “transition services” in the form of
“supplementary aides or services” while J.B. was adjusting to
public school. On appeal, R.E.B. contends that the DOE
violated the Individuals with Disabilities Education Act
(“IDEA”) because the DOE did not address his concerns
about J.B.’s transition.
The majority notes that the IDEA requires an IEP to
describe what “supplementary aids and services” will be
made available to the student when these resources will allow
the student to “be educated and participate with other children
with disabilities and nondisabled children.” The majority
then concludes that transition services qualify as
supplementary aids and services when “transition services
become necessary for disabled children to ‘be educated and
participate’ in new academic environments[.]” The majority
then holds that the school district violated the IDEA because
J.B.’s IEP did not list what transition services would be
offered to J.B.
However, the DOE in fact listened to R.E.B.’s concerns
about J.B.’s transition and tried to address them at a “transfer
plan meeting” held on June 13, 2012. The principal of Koko
Head Elementary School stated that the purpose of the
meeting was “to consider [J.B.’s] possible needs to minimize
potential harmful effects in the transfer from PAC to a public
school campus.” The school district decided at that meeting
that, to ease J.B.’s transition, J.B. would gradually transition
during the summer from PAC to Koko Head and J.B. would
not be “mainstreamed” (educated in a general education
setting with nondisabled peers) during this summer transition.
The DOE decided that this gradual transition would avoid

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anxiety that could potentially overwhelm J.B. Thus, the DOE
responded to R.E.B’s concerns about J.B.’s transition and
made a plan to facilitate that transition that would help J.B.
adapt to his new school. The IDEA does not state that an IEP
must list what transition services will be made available to a
student. Therefore, I would hold that the DOE did not violate
the IDEA even though J.B.’s IEP did not list transition
services that would be provided to him.
2. The Least Restrictive Environment Issue
J.B.’s IEP states that J.B.
will not participate with nondisabled peers for
Reading, Writing, Math, Science, Social
Studies, Speech/Language Therapy and
Occupational Therapy. [J.B.] will participate
with nondisabled peers for Library, Music,
PE, Art, Computer, Hawaiian Studies,
Mandarin, recesses, lunch, field trips,
assemblies and school-wide activities. [J.B.]
will also receive specialized instruction in the
general education setting for Science and
Social Studies activities as deemed
appropriate by his Special Education
teacher/Care Coordinator and General
Education teacher.
R.E.B. contends that the DOE violated the IDEA because
J.B.’s IEP did not specify the Least Restrictive Environment
(“LRE”) for J.B.
The majority appears to have no problem with the first
two sentences quoted above, which state the academic

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subjects and parts of the school day that J.B. will not
participate with nondisabled peers and the times that he will.
However, the majority faults the DOE for including the final
sentence quoted above: “[J.B.] will also receive specialized
instruction in the general education setting for Science and
Social Studies activities as deemed appropriate by his Special
Education teacher/Care Coordinator and General Education
teacher.” According to the majority, this sentence in the IEP
was an improper delegation to J.B.’s teachers, was “too vague
to allow R.E.B. [J.B.’s father] to use the IEP as a blueprint for
enforcement” and violated the IDEA’s requirement that an
IEP must provide details about what specialized instruction
will be provided to students with disabilities. Also, the
majority states that the IEP gave just a “cursory treatment” of
the Rachel H. factors when deciding how much specialized
instruction J.B. would receive. According to the majority, in
so doing, the DOE denied J.B. a Free Appropriate Public
Education (“FAPE”).
I would hold that the DOE did not violate the IDEA’s
LRE requirement. 20 U.S.C. § 1412(5)(A) states:
To the maximum extent appropriate, children
with disabilities, including children in public
or private institutions or other care facilities,
are educated with children who are not
disabled, and special classes, separate
schooling, or other removal of children with
disabilities from the regular educational
environment occurs only when the nature or
severity of the disability of a child is such that
education in regular classes with the use of
supplementary aids and services cannot be
achieved satisfactorily.

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Regulations interpreting the IDEA state that the IEP must
include “(5) An explanation of the extent, if any, to which the
child will not participate with nondisabled children in the
regular class.” 34 C.F.R. § 300.320(a)(5).
The DOE did include such an explanation in J.B.’s IEP.
In my view, this explanation was sufficient because the IEP
team (which included the Koko Head principal, J.B.’s future
teachers, and R.E.B.) decided for all academic subjects, as a
general matter, whether J.B. would participate with
nondisabled peers. The IEP then delegated to J.B.’s teachers
the decision to have J.B. participate with nondisabled peers
for certain “Science and Social Studies activities” even
though, as a general matter, J.B. would not participate with
nondisabled peers for these subjects. This nuanced
determination was reasonable because, as part of the Science
curriculum and the Social Studies curriculum, elementary
school students often perform experiments, simulations, and
field trips—the activities alluded to. Given J.B.’s autism, it
was reasonable for the IEP team to conclude that he would be
able to participate successfully with nondisabled peers for
some of these activities, but not for others, and that which
particular Science and Social Studies activities would be
appropriate for J.B. could not be determined at an IEP
meeting months or years before those activities happened.
Therefore, it was reasonable for J.B.’s IEP to specify that
J.B.’s “Special Education teacher/Care Coordinator and
General Education teacher” would decide together which
particular activities J.B. would participate with nondisabled
peers with the benefit of specialized instruction.
The majority finds fault with a sentence in J.B.’s IEP that
facilitated J.B. “being educated with children who are not
disabled” by giving J.B.’s teachers the authority to decide that

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he could participate with nondisabled peers for certain
Science and Social Studies activities. Presumably, had J.B.’s
IEP not included that sentence and stated that J.B. will not
participate with nondisabled peers for Science and Social
Studies entirely, without exception, that decision would have
withstood review by this appellate court. Since the IDEA
states that children should be educated with nondisabled peers
“to the maximum extent appropriate,” 20 U.S.C.
§ 1412(5)(A), I would respect the school district’s attempt to
achieve that goal in J.B.’s IEP.
Moreover, the majority cannot find binding legal
authority for the proposition that this provision of J.B.’s IEP
was an “improper delegation” and “too vague” to allow the
father to use the IEP for enforcement. Instead, the majority
cites a case in which we stated that school districts should
provide a “formal, specific offer” about a child’s educational
placement. But Smith involved a school district that
conceded that it “never formally offered [the student’s
family] a placement” at a particular school. Id. at 1525. In
this case, the school district offered a particular placement,
Koko Head Elementary School, and specified when during
the school day J.B. would not participate with nondisabled
peers and when he would participate with nondisabled peers.
Also, the majority contends that the school district’s
“cursory treatment” of the Rachel H. factors, which school
districts use to assess whether a child should be educated with
nondisabled peers or with other disabled peers, “‘seriously
infringed’ J.B.’s father’s opportunity to participate in the IEP
process[.]” But the district court concluded that the IEP team
“engaged in a thorough analysis that incorporated all four of
the Rachel H. factors.” Notes from, and an audio recording
of, the May 7, 2012, IEP meeting confirm that the district

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court was right. The IEP team discussed the Rachel H.
factors for nearly an hour at an IEP meeting. During this
time, the members of the IEP team completed a worksheet
that helped the team understand how the different Rachel H.
factors cut in favor of educating J.B. with nondisabled peers
or with other disabled peers.
3. The Applied Behavioral Analysis Issue
At PAC, the private school, J.B.’s teachers had used
Applied Behavioral Analysis (“ABA”), a teaching
methodology for students with autism. R.E.B. wanted the
DOE to specify in J.B.’s IEP that ABA methodology would
be used with J.B. At an IEP meeting on May 9, 2012, J.B.’s
father directly stated that he expressed a strong preference for
“pure VB-MAPP,” a particular type of ABA methodology.
However, at that meeting, J.B.’s future teachers stated that
they thought it was best to use multiple methodologies with
J.B. A special education teacher stated that she would
“work[] off the data submitted by PAC” and then described
a number of methodologies she would use with J.B.,
including “natural environment training,” “things they use in
OT [occupational therapy] and speech [therapy],” and
“[various] reinforcers and motivators.” The principal and the
teachers explained that they did not want to specify ABA
methodology in the IEP because the teachers wanted to use
more than one methodology. As a result, J.B.’s IEP did not
specify any particular methodology.
R.E.B. contends that the DOE violated the IDEA by not
specifying ABA methodology in J.B.’s IEP, and the majority
agrees. The majority notes that the IEP team discussed ABA
at length and recognized it was an important component of
J.B.’s education. Also, the majority states that “ABA is

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widely recognized as a superior method for teaching children
with autism.” Finally, the majority relies on our decision in
J.L. v. Mercer Island DOE, 592 F.3d 938 (9th Cir. 2009), in
which we recognized that school districts sometimes should
specify a teaching methodology in a student’s IEP.
J.L. does not provide much guidance about when a school
district should specify a teaching methodology in an IEP
beyond stating that doing so is necessary for some students.
See id. at 952. However, the facts of J.L. suggest that the
DOE was not required to specify ABA methodology in J.B.’s
IEP. In J.L., “[t]he District [] declined to name a particular
teaching methodology to be utilized by all teachers because
its experts recommended several effective programs, not just
a single ‘right’ choice.” 592 F.3d at 945. After the district
court held that the school district committed a procedural
violation of the IDEA in so doing, we reversed. Id. at 952,
54. As we explained:
We accord deference to the District’s
determination and the ALJ’s finding that [the
student’s] teachers needed flexibility in
teaching methodologies because there was not
a single methodology that would always be
effective. We hold that the District did not
commit a procedural violation of the
Individuals with Disabilities Education Act by
not specifying teaching methodologies in [the
student’s] individualized educational
programs[.]”
Id. at 952. This case is similar. J.B.’s teachers thought it was
best to use multiple teaching methodologies with J.B. They

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wanted the flexibility to select the methodology that best fit
J.B.’s needs as they arose.
In response, the majority states that “specifying ABA in
writing would not have precluded the use of other
methodologies.” But this pivot is not supported by legal
authority. Moreover, this response is in conflict with J.L.
because, if true, we should have affirmed in J.L. since the
school district in J.L. could have specified in the student’s
IEP the methodology preferred by her parents without
precluding the use of other methodologies. Given this
precedent and the deference we owe to J.B.’s teachers who
thought it was best to use multiple teaching methodologies,
I would hold that it was not necessary to specify in J.B.’s IEP
that the ABA methodology would be used.