K. K. et al v. Alta Loma School District et al

Filing 31

MINUTES (IN CHAMBERS) ORDER RE: COURT TRIAL HELD 12/7/2012 by Judge Christina A. Snyder: The Court hereby affirms the decision below, and finds in Defendants' favor on all issues brought on appeal. Because the Court has found in Defendants' favor on Plaintiff's claims under the Individuals with Disabilities Education Act, 20 U.S.C. Sections 1415 et seq., Defendants' Motion for Summary Judgment 20 is denied as moot. Court Reporter: Not Present. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-403 CAS (AGRx)

Title

K.K., ET AL. V. ALTA LOMA SCHOOL DISTRICT, ET AL.

Present: The Honorable

Date

January 29, 2013

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk

Not Present
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants

Not Present

Not Present

Proceedings:

(In Chambers:) ORDER RE: COURT TRIAL HELD
DECEMBER 7, 2012
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(Docket #20, filed October 15, 2012)

I.

INTRODUCTION

Plaintiff K.K., by through her parents Chris Kamena and Barbara Kamena, brought
the instant action seeking to reverse a decision of the California Office of Administrative
Hearings (“OAH”).1 The decision found that defendant Alta Loma School District
(“ALSD”) had provided plaintiff a free and appropriate public education (“FAPE”)
pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1415 et seq.
(“IDEA”). Plaintiff also seeks other relief under the IDEA, including reimbursement for
educational services, attorney’s fees, and other declaratory relief.
On October 15, 2012, defendants moved for summary judgment. Plaintiff filed an
opposition on November 5, 2012, and defendants replied on November 13, 2012.
Additionally, plaintiff filed a trial brief on October 15, 2012, defendants filed an
opposition to plaintiff’s trial brief on November 5, 2012, and plaintiff replied on
November 13, 2012. On December 7, 2012, the Court held a hearing on defendants’
motion for summary judgment, and also conducted a trial regarding plaintiff’s request to
reverse the decision of the OAH. After considering the parties’ arguments, the Court
finds and concludes as follows.

1

The decision below appears in the Administrative Record (“AR”) at 347 – 400.

CV-12-403 CAS (AGRx) (1/13)

CIVIL MINUTES - GENERAL

Page 1 of 17

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-403 CAS (AGRx)

Title

K.K., ET AL. V. ALTA LOMA SCHOOL DISTRICT, ET AL.

II.

Date

January 29, 2013

LEGAL STANDARD

The IDEA provides federal funds to assist state and local agencies in educating
children with disabilities. 20 U.S.C. § 1412; Ojai Unified Sch. Dist. v. Jackson, 4 F.3d
1467, 1469 (9th Cir. 1993). The purpose of the IDEA is to provide all children with
disabilities “a free appropriate public education that emphasizes special education and
related services designed to meet their unique needs and prepare them for employment
and independent living; to ensure that the rights of children with disabilities and parents
of such children are protected; and to assist States, localities, educational service
agencies, and Federal agencies to provide for the education of all children with
disabilities . . . .” 20 U.S.C. § 1400(d). This purpose is implemented through
development of individualized education plans (“IEP”), which are crafted by a team
including a student’s parents, teachers, and the local educational agency. 20 U.S.C. §
1414(d). The document prepared by the team contains the student’s current level of
performance, annual goals, short and long term objectives, specific services to be
provided and the extent to which the student may participate in regular educational
programs, and criteria for measuring the student’s progress. Id. The IDEA requires that
educators also guarantee certain procedural safeguards to children and their parents,
including notification of any changes in identification, education and placement of the
student, as well as permitting parents to bring complaints about matters relating to the
student’s education and placement, which may result in a mediation or a due process
hearing conducted by a local or state educational agency hearing officer. 20 U.S.C. §
1415(b)-(i).
Under 20 U.S.C. § 1415(i) , “[a]ny party aggrieved by the findings and decision”
made pursuant to a state’s administrative hearings process for resolving complaints made
under the IDEA may “bring a civil action . . . in a district court of the United States.” 20
U.S.C. § 1415(i)(2)(A). In any action brought under § 1415, “the court shall receive the
record of the [state] administrative proceedings, shall hear additional evidence at the
request of a party, and, basing its decision on the preponderance of the evidence, shall
grant such relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C). As
the Supreme Court explained in Board of Education v. Rowley, 458 U.S. 176 (1982), “a
court’s inquiry in suits brought under [§ 1415] is twofold. First, has the State complied
with the procedures set forth in the Act? And second, is the individualized educational
program developed through the Act's procedures reasonably calculated to enable the child
to receive educational benefits.” Id. at 207.
CV-12-403 CAS (AGRx) (1/13)

CIVIL MINUTES - GENERAL

Page 2 of 17

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-403 CAS (AGRx)

Date

January 29, 2013

Title

K.K., ET AL. V. ALTA LOMA SCHOOL DISTRICT, ET AL.

Courts review state administrative decisions regarding the appropriateness of a
special education placement de novo. County of San Diego v. California Special Educ.
Hearing Office, 93 F.3d 1458, 1466 (9th Cir. 1996); see also Ojai Unified School Dist. v.
Jackson, 4 F.3d 1467, 1471 (9th Cir. 1993) (“judicial review in IDEA cases differs
substantially from judicial review of other agency actions, in which courts generally are
confined to the administrative record and are held to a highly deferential standard of
review.”). When applying de novo review, however, a district court must give “due
weight” to judgments of educational policy, and “should not substitute their own notions
of sound educational policy for those of the school authorities which they review.”
Gregory K. v. Longview School Dist., 811 F.2d 1307, 1311 (9th Cir. 1987). Deference to
an administrative officer is appropriate in matters arising under the IDEA “for the same
reasons that it makes sense in the review of any other agency action – agency expertise,
the decision of the political branches to vest the decision initially in an agency, and the
costs imposed on all parties of having still another person redecide the matter from
scratch.” Capistrano Unified School Dist. v. Wartenberg, 59 F.3d 884, 891 (9th Cir.
1995) (quoting Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988)).
The amount of deference appropriate in a particular case is within the reviewing
court’s discretion. Gregory K, 811 F.2d at 1311. When determining the degree of
deference to grant a hearing officer’s findings, a particularly important factor is the
thoroughness with which they have been reached. Capistrano 59 F.3d at 891.
III.

BACKGROUND AND FACTUAL FINDINGS

The decision below contains detailed and thorough factual findings. See AR 351 –
378. The Court finds that the factual findings in the decision below are accurate, and
adopts them as they are set out. Additionally, since the factual findings encompass
matters no longer pursued in this appeal, and to provide context for the Court’s decision,
the Court summarizes the relevant facts.
Plaintiff has attended Jasper Elementary School within ALSD since she began
kindergarten. Nothing took place during plaintiff’s kindergarten year indicating that
plaintiff would need special education services. During her first grade year, although
plaintiff showed strengths in some areas of academics, she began having trouble in the
areas of reading and language arts, and did not meet state educational standards by the
end of first grade. Plaintiff’s first grade teacher – who has taught for over thirty years
CV-12-403 CAS (AGRx) (1/13)

CIVIL MINUTES - GENERAL

Page 3 of 17

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-403 CAS (AGRx)

Date

January 29, 2013

Title

K.K., ET AL. V. ALTA LOMA SCHOOL DISTRICT, ET AL.

and received training in identifying students who need special education – took note of
these shortcomings, but concluded that they did not justify referring plaintiff to special
education.
In second grade, plaintiff continued to struggle academically, and had particular
difficulty in reading. Consequently, plaintiff’s parents had informal discussions with
plaintiff’s teacher and members of ALSD’s special education staff, and on November 17,
2009, plaintiff’s mother and ALSD agreed to have plaintiff assessed to determine whether
she qualified for special education services. These assessments were conducted by two
ALSD staff members, Regina Edmon (“Edmon”), a school psychologist, and Kimberlynn
Rybarczyk (“Rybarczyk”), a credentialed special education teacher. Edmon and
Rybarczyk administered tests to evaluate plaintiff’s cognitive and academic abilities, and
plaintiff scored below average in almost all areas of evaluation. Plaintiff’s score in
listening comprehension was, however, substantially higher than her other scores.
On January 28, 2010, ALSD convened an IEP meeting to review the assessments
and determine whether plaintiff needed special education services. The participants in
the meeting concluded that plaintiff qualified for special education services under the
category of speech and language impairment. The IEP proposed that plaintiff should
remain in the general education classroom, but receive twenty minutes of instruction in
the special education resource room (“resource room”) for eighty minutes a week (twenty
minutes per day four days a week), and also receive forty half-hour sessions of speech
and language services over the course of the year. Plaintiff’s parents agreed to the IEP,
but also requested that ALSD fund an independent educational evaluation (“IEE”) in the
area of psychoeducation. Plaintiff’s parents also indicated that they only agreed to the
IEP pending the results of the IEE. ALSD implemented this IEP for the remainder of the
school year. Plaintiff made some progress in her IEP goals, but she did not meet second
grade educational standards by the end of the year.
The psychoeducation IEE requested by plaintiff’s parents took place between April
2010 and June 2010, and was conducted by Dr. Stephen Meyer (“Meyer”), a clinical
psychologist. Meyer administered tests to evaluate plaintiff’s level of cognitive ability,
and also administered neurological tests to determine if plaintiff suffered from a brain

CV-12-403 CAS (AGRx) (1/13)

CIVIL MINUTES - GENERAL

Page 4 of 17

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-403 CAS (AGRx)

Date

January 29, 2013

Title

K.K., ET AL. V. ALTA LOMA SCHOOL DISTRICT, ET AL.

injury.2 Meyer used a different testing methodology than Edmon and Rybarcazyk, and
concluded that plaintiff’s cognitive ability was in the average range, but that she had a
processing disorder in the areas of visual spatial processing and auditory
conceptualization. Meyer also concluded that plaintiff suffered from mild to moderate
brain dysfunction caused by birth trauma, and opined that the test results indicated
dyslexia and spelling dyspraxia. Finally, Meyer diagnosed plaintiff with Attention
Deficit Hyperactivity Disorder based on behavioral tests and questionnaires he
administered to plaintiff and her mother.
Based on the test results, Meyer recommended that ALSD revisit plaintiff’s special
education eligibility, and opined that the best special education methodology for
resolving plaintiff’s language arts problems was the Lindamood-Bell program.3 Meyer
believed that the Lindamood-Bell program’s “multisensory approach” was better for
brain-injured children than traditional reading programs offered in school. Meyer
admitted, however, that he was not familiar with the special education methodology that
ALSD used with plaintiff.
After receiving Meyer’s recommendation, plaintiff’s parents took her to a
Lindamood-Bell office in Pasadena, CA for another evaluation. A staff member at the
Lindamood-Bell office administered a battery of tests to plaintiff, and based on the results
concluded that plaintiff should receive four hours of Lindamood-Bell instruction five
days a week for a period of seven to nine weeks. Anne Perry (“Perry”), the director of
the Lindamood-Bell office in Pasadena, signed the assessment but did not know which
staff member actually conducted the assessment.

2

Meyer suspected that plaintiff may have been suffering from a brain injury
because plaintiff’s mother informed him that plaintiff was not breathing when she was
born.
3

Lindamood-Bell is a special education methodology, and there are several
Lindamood-Bell Learning Centers in the United States that offer specialized one-to-one
intensive instruction. Both plaintiff and ALSD presented expert testimony regarding
Lindamood-Bell. AR 1868 – 1980 (testimony of Douglass Moss); AR 2482 – 2571
(testimony of Anne Perry); see also www.lindamoodbell.com/about.spx.
CV-12-403 CAS (AGRx) (1/13)

CIVIL MINUTES - GENERAL

Page 5 of 17

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-403 CAS (AGRx)

Date

January 29, 2013

Title

K.K., ET AL. V. ALTA LOMA SCHOOL DISTRICT, ET AL.

On August 26, 2010, ALSD convened an IEP meeting to review the IEE and the
Lindamood-Bell assessment. Perry and Meyer attended the IEP meeting and discussed
their assessments and recommendations. Meyer recommended Lindamood-Bell services
at the meeting, and Perry expressed her belief that Lindamood-Bell services would bring
plaintiff up to grade level in seven to eight weeks. The ALSD staff members responded
that they were concerned about enrolling plaintiff in the Lindamood-Bell program for
four hours each day because that would entail plaintiff missing the core curriculum at
school. ALSD staff members also believed that plaintiff could make sufficient progress
in the general education classroom with some special education support. Nevertheless,
ALSD staff members wanted another chance to review the assessments presented at the
meeting, and therefore made no changes but scheduled a follow up meeting for
September 16, 2010.
At the September 16, 2010 follow-up meeting, ALSD staff members and plaintiff’s
parents discussed her present levels of performance and her progress towards IEP goals.
ALSD staff members noted that plaintiff was making progress on her IEP goals, but had
not met them. Consequently, the goals in plaintiff’s IEP were modified to take into
account her progress and the appropriate educational standards for third grade.
Additionally, plaintiff’s IEP was updated to increase the amount of time plaintiff spent in
the resource room to thirty minutes a day for four days a week, and also was also
modified to include a clause stating that plaintiff could spend “any other amount of time,
as needed” in the resource room. Plaintiff’s parents did not consent to the IEP at the
meeting, but consented on December 9, 2010.
Although plaintiff’s parents consented to the proposed IEP, they also requested
that ALSD fund services through Lindamood-Bell. ALSD responded that they would not
fund Lindamood-Bell services because plaintiff was making progress at Jasper
Elementary, and the Lindamood-Bell program provided instruction in a restrictive setting,
so placing plaintiff in that program would require plaintiff to miss valuable social and
academic experiences that occur in a general education classroom.
On January 21, 2011, plaintiff’s parents decided that they were going to remove
her from Jasper Elementary and enroll her in the Lindamood-Bell program every morning
from 8 AM until 11 AM, but that they would return plaintiff to Jasper Elementary in the
afternoon. Plaintiff’s parents also demanded that plaintiff not receive instruction in the
resource room in the afternoons, and on February 4, 2011 withdrew their consent to
CV-12-403 CAS (AGRx) (1/13)

CIVIL MINUTES - GENERAL

Page 6 of 17

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-403 CAS (AGRx)

Date

January 29, 2013

Title

K.K., ET AL. V. ALTA LOMA SCHOOL DISTRICT, ET AL.

plaintiff’s IEP. Plaintiff’s mother explains that she decided to remove plaintiff from
Jasper Elementary and enroll her in Lindamood-Bell because she believed plaintiff would
never catch up if she remained in the general education classroom. Plaintiff began
attending Lindamood-Bell on February 1, 2011. She also continued to receive instruction
in the resource room while at Jasper Elementary, and received between ten and ninety
minutes of instruction per day.
The parties met for another IEP meeting on February 10, 2011 to discuss plaintiff’s
parents’ decision to remove her from Jasper Elementary. ALSD staff members present at
the meeting believed this was a mistake because plaintiff had made progress since the
beginning of the school year. The ALSD staff members were also concerned about
plaintiff missing the social component of education. Plaintiff’s parents responded that
they remained concerned about plaintiff’s low test scores. Also at the meeting, ALSD
proposed increasing the amount of plaintiff’s instructional time in the resource room to
ninety minutes per day, with half that time devoted to mathematics and the other half to
language arts. Plaintiff’s parents did not consent to the proposed IEP at the meeting, and
two weeks later they sent ALSD a letter stating that they consented to instruction in the
resource room for mathematics only. Beginning March 1, 2011, ALSD only provided
mathematics instruction to plaintiff in the resource room.
After the February 2011 IEP meeting, plaintiff continued attending LindamoodBell in the morning. On May 4, 2011, after plaintiff had received 189 hours of
instruction, the Lindamood-Bell center conducted a reevaluation of plaintiff on May 4,
2011. Although Anne Perry, the director of the Pasadena Lindamood-Bell office,
concluded that this evaluation showed improvement, she recommended another 120 –
160 hours of Lindamood-Bell instruction.
After unsuccessful attempts at mediation, plaintiff and ALSD both requested
administrative due process hearings to address, among other things, the procedural and
substantive adequacy of plaintiff’s IEPs, and plaintiff’s request for reimbursement for
Lindamood-Bell services. On August 23, 24, 25, 30, and 31, 2011, Administrative Law
Judge Susan Ruff conducted a hearing, and issued the decision below on October 2011.
The instant action followed.

CV-12-403 CAS (AGRx) (1/13)

CIVIL MINUTES - GENERAL

Page 7 of 17

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-403 CAS (AGRx)

Title

K.K., ET AL. V. ALTA LOMA SCHOOL DISTRICT, ET AL.

IV.

Date

January 29, 2013

ANALYSIS
Plaintiff raises four errors in the decision below. The Court considers each in turn.
A.

Whether ALSD Offered Plaintiff Substantively Appropriate IEPs

Plaintiff's central contention is that the IEPs offered by ALSD in September 2010
and February 2011 were not substantively adequate, and that ALSD was required to
provide plaintiff with intensive, one-on-one services of the kind provided at LindamoodBell. The decision below found both IEPs to be substantively adequate under the Rowley
standard.
Plaintiff asserts two arguments challenging the decision below. First, plaintiff
contends that the decision below applied an incorrect legal standard. The decision
considered whether plaintiff’s IEPs offered plaintiff “some educational benefit,” but
plaintiff argues that under Ninth Circuit precedent, the correct legal standard is whether
an IEP offers a student a “meaningful educational benefit.” N.B. v. Hellgate Elementary
School Dist., 541 F.3d 1202, 1213 (9th Cir. 2008); Office of Administrative Hearings
Decision (“OAHD”), Legal Conclusions ¶ 5 (applying the “some educational benefit”
standard). Plaintiff claims that this error warrants reversing the decision below because
the IEPs at most were calculated to offer her de minimis benefits, not meaningful
benefits. In support of this argument, plaintiff points out that Dr. Meyer testified that
typical special education services offered for forty-five minutes per day were not
sufficient to satisfy plaintiff’s needs.
Plaintiff’s second ground for reversing the decision below is that it ignored
evidence that she purportedly failed to make meaningful progress under the IEPs.
Plaintiff argues that she did not make significant progress in second and third grade under
her IEPs. Additionally, plaintiff contends that as of December 2011, her reading scores
have actually declined when compared with her scores in 2009. See Supplemental
Evidence (“SE”), Dkt. # 18, at 2575 (KTEA test score of 68 in December 2011, which is
in the “lower extreme” range), AR at 426 (KTEA test score of 73 as of 2009, which is in
the “below average” range).
The Court reviews the substantive adequacy of plaintiff’s IEPs de novo. Gregory
K. v. Longview School Dist., 811 F.2d 1307, 1314 (9th Cir. 1987). First, as to the
CV-12-403 CAS (AGRx) (1/13)

CIVIL MINUTES - GENERAL

Page 8 of 17

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-403 CAS (AGRx)

Date

January 29, 2013

Title

K.K., ET AL. V. ALTA LOMA SCHOOL DISTRICT, ET AL.

appropriate legal standard, plaintiff is correct that the decision below applied an incorrect
standard for determining the substantive adequacy of plaintiff’s IEPs. In Hellgate, the
Ninth Circuit recognized that after the 1997 amendments to the IDEA, a special
education plan must provide a student with a “meaningful benefit,” not merely “some
educational benefit.” Hellgate, 531 F.3d at 1213. The “meaningful benefit” standard is a
more exacting form of review than the “some benefit” standard, and this “heightened”
review requires a court to determine the adequacy of the educational benefit “in relation
to the potential of the child at issue.” Id. (citing Deal v. Hamilton County Bd. of Educ,
392 F.3d 840, 862 (6th Cir. 2004). When applying the meaningful benefit test, courts
should examine whether a program is “individualized and tailored to the unique needs of
the child and reasonably calculated to produce benefits (i.e., learning progress, growth)
that are significantly more than de minimus and gauged in relation to the potential of the
child at issue.” Blake C. v. Dept. of Educ., State of Hawaii, 593 F. Supp. 2d 1199, 1206
(D. Hawaii 2009).
Nevertheless, it remains true that under the heightened “meaningful benefit”
standard, a school need not provide a special education program that maximizes the
potential of a child. R.B. ex rel. F.B. v. Napa Valley Unified School Dist., 496 F.3d 932,
946 (9th Cir. 2007) (“the IDEA does not guarantee the absolutely best or
‘potential-maximizing’ education for the individual child.”); see also Hellgate, 541 F.3d
at 1202, 1213 n. 2. Therefore, as another court in this circuit has concluded, “Rowley
still applies; its meaning, however, has been refined by subsequent statutory changes and
corresponding case law.” Blake C., 593 F. Supp. 2d at 1207.4
The decision below should have articulated the“meaningful benefit” standard. It
does not appear, however, that this error led to an incorrect result. Crucially, the decision
found that plaintiff’s IEP was individualized to her particular needs. The decision
reached this conclusion based on Rybarczyk’s testimony, which stated that plaintiff’s
IEPs identified and addressed plaintiff’s needs and provided a placement and services
sufficient to meet those needs. OAHD, Factual Findings ¶¶ 35, 90; OAHD, Legal
Conclusions ¶¶ 78 – 79. Additionally, the decision noted that plaintiff received special

4

The court in Blake C. also noted that “[v]arious opinions have left it ambiguous
as to what the precise difference, if any, is between ‘meaningful’ benefit and ‘some’
benefit.” Blake C., 593 F. Supp. 2d at 1206.
CV-12-403 CAS (AGRx) (1/13)

CIVIL MINUTES - GENERAL

Page 9 of 17

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-403 CAS (AGRx)

Date

January 29, 2013

Title

K.K., ET AL. V. ALTA LOMA SCHOOL DISTRICT, ET AL.

education pursuant to the Voyager Passport intervention program, and that ALSD
provided testimony that this intervention program is particularly effective for struggling
readers such as plaintiff. OAHD, Factual Findings ¶¶ 67 – 68. Furthermore, the IEPs
were developed pursuant to IEP meetings where the participants considered detailed
individualized evaluations of plaintiff’s skills and limitations, and this suggests that the
goals and services in the IEP were appropriately tailored for the special education issues
identified in the evaluations.
Additionally, the decision below observed that none of plaintiff’s witnesses
credibly testified that ALSD’s program was not appropriate for plaintiff’s needs. While
Meyer generally stated that ALSD’s program was not a good match for plaintiff, he
admitted that he was not familiar with the special education programs ALSD offered.
OAHD, Factual Findings ¶ 90, OAHD, Legal Conclusions ¶¶ 78 – 79. Similarly, while
Perry testified that Lindamood-Bell services would be the best fit for plaintiff, she did not
testify that ALSD’s services would fail to provide an educational benefit to plaintiff.
OAHD, Factual Findings ¶ 90. Consequently, the decision below reasonably found that
neither Meyer’s opinion nor Perry’s cast doubt on whether plaintiff’s IEP was properly
individualized for plaintiff’s particular needs. It therefore appears that application of the
incorrect legal standard in the decision below did not lead to reversible error.
The Court next considers plaintiff’s argument that she only made de minimis
progress, not meaningful progress, under her IEPs. Before considering whether plaintiff
has made meaningful progress, however, the Court must address a dispute between the
parties regarding what evidence is relevant to this inquiry. As noted above, plaintiff
argues that evidence concerning plaintiff’s progress in the beginning of fourth grade is
relevant to whether her September 2010 and February 2011 IEPs, developed during third
grade, were reasonably calculated to confer a meaningful benefit on plaintiff. According
to plaintiff, plaintiff’s lack of progress in fourth grade provides some evidence that the
IEPs were unreasonable because it shows that they did not, in fact, succeed in conferring
a meaningful educational benefit on plaintiff. Defendants disagree, and argue that under
the “hindsight rule,” see Adams v. State of Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999),
the Court can only evaluate the substantive reasonableness of an IEP based on evidence
that a school could reasonably have considered at the time the IEP was developed. Since
ALSD could not have considered plaintiff’s progress in fourth grade when developing her

CV-12-403 CAS (AGRx) (1/13)

CIVIL MINUTES - GENERAL

Page 10 of 17

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-403 CAS (AGRx)

Date

January 29, 2013

Title

K.K., ET AL. V. ALTA LOMA SCHOOL DISTRICT, ET AL.

third grade IEPs, defendants contend that this evidence is not relevant to whether the
IEPs were substantively reasonable.
The Court finds that defendants have overstated the “hindsight rule.” An IEP
should not be judged “exclusively in hindsight,” but the reasonableness of an IEP need
not be determined solely based on facts available to the school at the time the IEP was
formulated. Adams, 195 F.3d at 1149 (9th Cir. 1999). The “hindsight rule” only requires
that a Court consider evidence of subsequent events in conjunction with what appeared
objectively reasonable to school administrators at the time an IEP was developed. Id.;
see also E.M. ex rel. E.M. v. Pajaro Valley Unified School Dist. Office of Administrative
Hearings, 652 F.3d 999, 1004 (9th Cir. 2011) (“after-acquired evidence may shed light on
the objective reasonableness of a school district’s actions at the time the school district
rendered its decision.”). Consequently, the Court finds that if plaintiff can demonstrate
that she failed to make meaningful progress while following the program set out in her
IEPs, this provides evidence that the IEPs were substantively unreasonable.
Turning to the evidence of plaintiff’s progress, however, the Court disagrees with
plaintiff’s claim that she only made de minimis progress while at Jasper Elementary.
With respect to plaintiff’s second and third grade years, the decision below points out
various important advancements made by plaintiff. For example, plaintiff was unable to
write a paragraph on her own in January 2010, but she was able to do so by the time of
her September 2010 IEP meeting. OAHD, Factual Findings ¶ 79. The decision also
noted that, according to plaintiff’s third grade teacher, she was meeting many of the third
grade standards and was making progress in fluency and reading comprehension.
OAHD, Factual Findings ¶ 130. Additionally, Rybarczyk testified that plaintiff was
making substantial progress in reading decoding, and that she was on track to meet her
third grade IEP goals. OAHD, Factual Findings ¶ 134.
Plaintiff does not explain why this only amounts to de minimis progress. Plaintiff
does point to the Lindamood-Bell testing in January 2011 that concluded that plaintiff
had not made any progress since the summer of 2010, but the decision below reasonably
did not credit this evaluation because the individual who administered the tests did not
testify and could not be identified. OAHD, Legal Conclusions ¶ 92, Factual Findings ¶

CV-12-403 CAS (AGRx) (1/13)

CIVIL MINUTES - GENERAL

Page 11 of 17

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-403 CAS (AGRx)

Date

January 29, 2013

Title

K.K., ET AL. V. ALTA LOMA SCHOOL DISTRICT, ET AL.

59.5 Additionally, plaintiff’s mother testified to her belief that plaintiff would never catch
up to her peers if she were only provided with the services offered in plaintiff’s IEP. This
concern, even if true, does not show that plaintiff was only making de minimis progress,
because under the “meaningful benefit” standard, schools are not required to provide
special education services that allow disabled students to perform at the same level as the
rest of the class. See, e.g., Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 862 (9th
Cir. 2004) (“A school district clearly is not required to ‘maximize each child's potential
commensurate with the opportunity provided other children.’”) (quoting Rowley, 485
U.S. at 198).
The Court also finds that plaintiff made meaningful progress in fourth grade. As
plaintiff points out, it is true that the evidence suggests that plaintiff’s score on the KTEA
test decreased from 2009 to 2011. Since the decrease was slight, however, and it appears
that the KTEA is normed to a student’s age, at best this evidence shows that plaintiff is
progressing more slowly than her peers. See AR at 425 – 427, 431 (test normed to
student’s age). It does not demonstrate the lack of any progress. Additionally, other
evidence submitted by plaintiff supports the contrary conclusion that she was making
progress in fourth grade. Plaintiff’s fourth grade report cards show that her teacher
believes she is “making slow, yet steady, progress towards grade level standards in math
and reading.” SE 2595. Her IEP also notes that she is able to write a multiple paragraph
composition, and that she can grasp grade level math concepts. SE 2575.
In conclusion, the Court finds that the September 2010 and February 2011 IEPs
were reasonably calculated to confer a meaningful educational benefit on plaintiff, and
therefore affirms the finding of the decision below that the IEPs were substantively
reasonable.
B.

Whether ALSD was Required to Conduct a More Detailed Initial
Evaluation

Plaintiff argues that ALSD did not conduct an appropriate initial evaluation of her
special education needs. In particular, plaintiff points out that her listening
5

The decision below also notes testimony from ALSD witnesses stating that the
tests offered by Lindamood-Bell were outdated. OAHD, Factual Findings ¶ 64.
CV-12-403 CAS (AGRx) (1/13)

CIVIL MINUTES - GENERAL

Page 12 of 17

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-403 CAS (AGRx)

Date

January 29, 2013

Title

K.K., ET AL. V. ALTA LOMA SCHOOL DISTRICT, ET AL.

comprehension test score was substantially higher than her scores on other diagnostic
tests, and argues that ALSD should have conducted additional tests to determine the
reason for this discrepancy. Plaintiff argues that because ALSD did not conduct these
additional follow up tests, it failed to determine plaintiff’s unique areas of need using
adequate assessment tools, in violation of 20 U.S.C. § 1414(b)(3)(B) and (C), and 34
C.F.R. § 300.304(c).
The decision below found that it was reasonable for ALSD not to conduct
additional tests despite plaintiff’s high listening comprehension score. OAHD, Legal
Conclusions ¶ 21. Relying on Edmon’s testimony, the decision below found that ALSD
reasonably interpreted the high test score to mean that listening comprehension was a
unique area of strength for plaintiff, a conclusion that did not warrant further testing. The
decision below further explained that this interpretation of the test was justified because
all other tests administered to plaintiff as part of her initial evaluation were consistent
with one another.
20 U.S.C. § 1414(b) sets out the procedures school districts must follow when
evaluating a student’s eligibility for special education. Under § 1414(b)(3)(B) and (C),
school districts are required assess students “in all areas of suspected disability,” and
must use “assessment tools and strategies that provide relevant information that directly
assists persons in determining the educational needs of the child are provided.” The
Court finds that neither of these requirements were violated because, as the decision
below sets out, ALSD reasonably interpreted plaintiff’s high listening comprehension test
score to show nothing more than a strength in this area. Consequently, this test score did
not provide grounds for suspecting any additional disability, and the failure to conduct
additional tests did not demonstrate that ALSD ignored relevant sources of information.
The Court agrees with the decision below that the initial evaluations were appropriate,
and did not deny plaintiff a FAPE.
C.

Whether ALSD Violated the IDEA During the Process of Developing
Plaintiff’s IEPs

Plaintiff argues that ALSD did not satisfy various procedural requirements of the
IDEA in the course of developing plaintiff’s IEPs. Plaintiff’s arguments essentially
contend that ALSD exhibited bad faith during the development of plaintiff’s IEPs.
CV-12-403 CAS (AGRx) (1/13)

CIVIL MINUTES - GENERAL

Page 13 of 17

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-403 CAS (AGRx)

Date

January 29, 2013

Title

K.K., ET AL. V. ALTA LOMA SCHOOL DISTRICT, ET AL.

Specifically, plaintiff argues that ALSD failed to honestly consider plaintiff’s
evaluations, failed to honestly consider plaintiff’s parents’ concerns, and predetermined
its offer of special education services prior to IEP meetings. Additionally, plaintiff
argues that because her IEPs stated that she could receive “any other time as needed” in
the resource room, her IEP was unreasonably vague and impermissibly gave ALSD
teachers discretion to determine the duration of plaintiff’s special education services
outside of the IEP process.
The decision below found that ALSD did not predetermine its offer of special
education services, and that it gave good faith consideration to the independent
evaluations and plaintiff’s parents’ concerns. First, the decision below pointed out that
ALSD adjourned the August 2010 IEP meeting and scheduled a followup meeting in
September 2010 in order to give their staff time to review plaintiff’s independent
assessments. Moreover, the decision below found that the testimony of the ALSD
witnesses showed that they sincerely considered the independent evaluations. Turning to
plaintiff’s parents’ concerns, the decision below found that ALSD honestly listened to
plaintiff’s parents at IEP meetings, and proposed changes to the IEP based on their
concerns. For example, in the February 2010 IEP meeting, ALSD staff members offered
to increase the amount of time plaintiff spent in the resource room in response to
plaintiff’s parents concerns. Additionally, the decision below found no evidence of
predetermination. The decision recognized that an ALSD staff member wrote a letter to
plaintiff’s parents prior to the September 2010 IEP meeting stating that ALSD was “not
looking to make any changes” to plaintiff’s special education services. The decision
below also found, however, that the ALSD approved changes to plaintiff’s services at the
September 2010 meeting, and therefore inferred that ALSD’s conclusions were not
predetermined.
Finally, the decision below found that the “any other time as needed” clause did
not amount to a procedural violation of the IDEA because ALSD never gave plaintiff
more than ten to twenty-five minutes of extra services pursuant to this clause. The
decision below also noted that this “minor flexibility” was intended to do nothing more
than allow plaintiff’s teachers to tailor their offer of special education to plaintiff’s needs
on a particular day, and that no harm could have resulted from this clause because
plaintiff is not arguing that she spent too much time receiving special education services,
but instead is demanding more intensive special education services.
CV-12-403 CAS (AGRx) (1/13)

CIVIL MINUTES - GENERAL

Page 14 of 17

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-403 CAS (AGRx)

Date

January 29, 2013

Title

K.K., ET AL. V. ALTA LOMA SCHOOL DISTRICT, ET AL.

The Court agrees with the decision below. First, plaintiff presents no evidence of
unlawful predetermination. “A school district violates IDEA procedures if it
independently develops an IEP, without meaningful parental participation, and then
simply presents the IEP to the parent for ratification.” Ms. S. ex rel. G. v. Vashon Island
School Dist., 337 F.3d 1115, 1131 (9th Cir. 2003). No such thing took place here, which
is demonstrated by the fact that ALSD changed its offer of special education services
after the September 2010 and February 2011 IEP meetings.
Moreover, ALSD did not ignore the IEEs or plaintiff’s parents’ concerns. Parent
participation is an important part of the IEP development process, and parents must be
given an opportunity for “meaningful participation” in the development of their child’s
IEP. Vashon Island, 337 F.3d at 1131 – 1132; Cerra v. Pawling Cent. School Dist., 427
F.3d 186, 192 (2d. Cir. 2005). Moreover, a school district must consider the results of an
independent assessment as part of the IEP process. 20 U.S.C. § 1414(d)(3)(A). Here, at
least one of plaintiff’s parents participated in each IEP meeting, and there is no evidence
suggesting that ALSD staff ignored their concerns, treated plaintiff’s parents
dismissively, or took a “take it or leave it” approach with plaintiff’s parents. Vashon
Island, 337 F.3d at 1132. Similarly, ALSD reconvened an IEP meeting specifically to
consider plaintiff’s independent assessments, and the individuals who conducted or
indirectly supervised the IEEs participated in an IEP meeting. Finally, the decision below
found that the testimony of the ALSD witnesses demonstrated that they sincerely
considered the IEEs. The evidence therefore shows that ALSD honestly considered
plaintiff’s IEEs and gave plaintiff’s parents a meaningful opportunity to participate in the
development of plaintiff’s IEP.
The Court also finds that the “any other time as needed” clause did not lead to any
procedural violations of the IDEA. Although plaintiff complains that this clause
prevented plaintiff’s parents from participating in the IEP process and gave ALSD too
much discretion in setting the duration of services, these concerns are unfounded. The
presence of this clause did not prevent plaintiff’s parents from asking ALSD to increase
the minimum amount of time plaintiff was required to spend in the resource room, and
did not give ALSD teachers discretion to cease special education services or only provide
a nominal amount of service. Moreover, plaintiff’s complaints about this clause appear
tangential because the dispute between ALSD and plaintiff concerns the quality and type

CV-12-403 CAS (AGRx) (1/13)

CIVIL MINUTES - GENERAL

Page 15 of 17

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-403 CAS (AGRx)

Date

January 29, 2013

Title

K.K., ET AL. V. ALTA LOMA SCHOOL DISTRICT, ET AL.

of special education services plaintiff was to receive, and not the length of time she
received services.6
D.

Whether ALSD Failed to Implement Services in Plaintiff’s IEP

Although most of plaintiff's arguments challenge the substantive or procedural
sufficiency of her IEPs, plaintiff also argues that ALSD failed to implement the IEP that
was actually offered. In particular, plaintiff argues that the frequency and duration of
services offered to plaintiff varied from the services set out in her IEP. Plaintiff points to
resource room logs showing that plaintiff actually received between ten and ninety
minutes of instruction per day in the resource room, not the thirty minutes per day
specified in her IEP.
The decision below found that there was some variation in the amounts of time
plaintiff spent in the resource room each day. The decision noted, however, that only a
material failure to implement the services described in an IEP amounts to a denial of
FAPE. Van Duyn, et al. v. Baker School District 5J, 502 F.3d 811, 815 (9th Cir. 2007).
Turning to the evidence, the decision found that no material failure to implement the
services took place because, at most, plaintiff's time in the resource room only fell below
the minimum amount of time specified in plaintiff's IEP on three or four days.

6

Plaintiff also argues that her parents were unable to effectively participate in the
IEP process because defendants did not timely produce plaintiff’s educational records
after a request pursuant to the California Education Code. Cal. Educ. Code § 56504. The
decision below did find that ALSD failed to timely produce plaintiff’s educational
records, but only with respect to records involving occupational therapy, adapted physical
education, and assistive technology, which are outside the scope of the instant action.
OAHD, Legal Conclusions ¶¶ 54 – 56. Plaintiff does not contend that there was a failure
to produce educational records material to the issues relevant to this appeal, so the Court
cannot conclude that plaintiff suffered any prejudice due to the failure to produce records.
Plaintiff also asserts that the decision failed to craft a remedy for ALSD’s failure to
timely produce educational records. Compl. ¶¶ 76 – 80. This is inaccurate. OAHD,
Legal Conclusions ¶ 104 (ordering ALSD to conduct IEEs in the areas of adapted
physical education, occupational therapy, and assistive technology).
CV-12-403 CAS (AGRx) (1/13)

CIVIL MINUTES - GENERAL

Page 16 of 17

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 12-403 CAS (AGRx)

Date

January 29, 2013

Title

K.K., ET AL. V. ALTA LOMA SCHOOL DISTRICT, ET AL.

The Court finds that plaintiff has not demonstrated that ALSD materially failed to
implement plaintiff's IEPs, for the reasons provided in the decision below. “There is no
statutory requirement of perfect adherence to the IEP,” Van Duyn, 502 F.3d at 821, and
small variations in the amounts of time plaintiff spent receiving instruction do not rise to
the level of a material failure to implement services.
V.

CONCLUSION

In accordance with the foregoing, the Court hereby affirms the decision below, and
finds in defendants’ favor on all issues brought on appeal.7
IT IS SO ORDERED.
00
Initials of Preparer

:

00

CMJ

7

Because the Court has found in defendants’ favor on plaintiff’s claims under the
IDEA, defendants’ motion for summary judgment is denied as moot.
CV-12-403 CAS (AGRx) (1/13)

CIVIL MINUTES - GENERAL

Page 17 of 17