Jay F. et al v. William S Hart Union High School District

Filing 87

FINDINGS OF FACT AND CONCLUSIONS OF LAW signed by Judge Terry J. Hatter, Jr. IT IS ORDERED that Plaintiffs first claim (asserted in case number CV 16-05117 (TJH) was established by a preponderance of the evidence. IT IS FURTHER ORDERED that that Plaintiffs second and third claims (asserted in case numbers CV 16-05117 TJH and CV 17-00479 TJH), and Defendants only claim (asserted in case number CV 17-00479 TJH) were not established by a preponderance of the evidence. IT IS FURTHER ORDERED th at issue 1 in the Expedited Decision be, and hereby is REVERSED. IT IS FURTHER ORDERED that issues 2 and 4 in the Expedited Decision are VACATED. IT IF FURTHER ORDERED that the issues 3 andn 5 in the Expedited Decision, all all issues in the Non-Expedited Decision be and are AFFIRMED. See document for further details. (shb)

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1 2 3 4 5 6 7 United States District Court Central District of California Western Division 8 9 10 11 12 JAY F. et al., 13 14 15 16 17 18 19 CV 16-05117 TJH (GJSx) Plaintiffs, Consolidated Case Nos.: CV 16-05226 TJH (GJSx) CV 17-00479 TJH (GJSx) v. WILLIAM S. HART UNION HIGH SCHOOL DISTRICT, Defendant. Findings of Fact and Conclusions of Law JS-6 20 The Court has considered Plaintiffs Jay F., Shari L. [collectively “Parents”], and 21 A.F.’s appeals of issues decided by the California Office of Administrative Hearings 22 [“OAH”] in Parents On Behalf Of Student, v. William S. Hart Union High School 23 District, OAH Case No. 2016020807, April 18, 2016, Decision [“Expedited Decision”] 24 (before this Court as case number CV 16-05117 TJH) and Parents On Behalf Of 25 Student, v. William S. Hart Union High School District, OAH Case No. 2016020807, 26 October 24, 2016, Decision [the “Non-Expedited Decision”] (before this Court as case 27 number CV 17-00479 TJH) as well as Defendant William S. Hart Union High School 28 District’s [the “District”] appeal of an issue decided in the Expedited Decision (before Findings of Fact and Conclusions of Law – Page 1 of 16 1 this Court as case number CV 16-05226 TJH). 2 The Court, having considered the submitted briefs and evidence, and having 3 heard closing arguments, now, issues the following Findings of Fact and Conclusions 4 of Law: 5 FINDINGS OF FACT 6 7 1. The Court adopts the ALJ’s factual findings in the Expedited and Non- 8 Expedited Decisions. The Court summarizes the facts below that are relevant to 9 Plaintiffs’ first claim. 10 2. Starting, at least, in second grade, A.F. was disciplined for serious, 11 threatening behaviors. Those behaviors included threatening and hitting other students, 12 teasing and aggression toward others, emotional outbursts after engaging in behavior 13 incidents, threatening to rape another student, and threats on social networks. 14 3. A.F. became eligible for special education in 2009 under the eligibility 15 category of “other health impaired due” to Attention Deficit Hyperactivity Disorder 16 [“ADHD”]. 17 4. On June 2, 2010, the District amended A.F.’s Individualized Education 18 Program [“IEP”] to include mental health services on an outpatient basis and added 19 emotional disturbance to his IEP as a secondary eligibility. 20 5. In November, 2013, A.F. expressed that he did not want to exist without 21 his girlfriend, that “this is a cruel world,” and that people like his teacher did not 22 belong there. He stated he wanted revenge on his ex-girlfriend and would not care if 23 she died. His “revenge plan” was to get a new girlfriend to make his ex-girlfriend 24 jealous. 25 6. As the 2013-14 school year progressed, A.F. made increasingly threatening 26 statements to students that he had guns in the home, had brought pills and razor blades 27 to school, was a member of a gang, had shot a person in the stomach, and had been 28 kicked out of the house. Findings of Fact and Conclusions of Law – Page 2 of 16 1 7. On May 27 2014, A.F.’s IEP team held a manifestation determination 2 meeting followed by an IEP team meeting. The incident at issue involved Student 3 bringing two razor blades to school [“Razor Blade Incident”]. He used the blades to 4 cut himself on his upper arm; pulled them out in front of several students during an 5 argument with peers and brandished the blades and swung them toward his peers; made 6 threats to cut his peers; and made inappropriate sexual comments towards a female 7 peer. The team concluded that the behaviors related to the razor incident were a 8 manifestation of his emotional disturbance. 9 10 11 8. On October 20, 2014, the District disciplined A.F. for using a controlled substance [“Controlled Substance Incident”]. 9. On January 20, 2015, while in eighth grade, A.F. threatened to bring a gun 12 to school for the purpose of harming himself and another student [“Gun Threat 13 Incident”]. 14 10. On January 26, 2015, the District held a manifestation determination 15 meeting for the Gun Threat Incident. A.F.’s threatening behavior was deemed to have 16 been a manifestation of his disability. 17 11. On January 27, 2015, the District held an IEP team meeting to consider 18 A.F.’s eligibility for special education. That IEP team meeting was facilitated by 19 School Psychologist Laura Ramirez. The IEP team agreed that A.F. was eligible for 20 special education under the primary category of other health impairment and secondary 21 category of emotional disturbance. 22 12. At the January 27, 2015, IEP team meeting, the IEP team had knowledge 23 of A.F.’s extensive disciplinary history, his diagnosis of a non-specific mood disorder, 24 and the impact of A.F.’s attention-seeking and threatening behavior on his peers at 25 school and on the District staff. The IEP team did not have time to collect all relevant 26 data to develop a behavior intervention plan. Due to the IEP team’s lack of relevant 27 behavioral data, the IEP team agreed to hold a 30-day review meeting to develop a 28 behavior intervention plan. Findings of Fact and Conclusions of Law – Page 3 of 16 1 2 3 13. Directly following the January 27, 2015, IEP team meeting, A.F.’s January 27, 2015, IEP was in effect. 14. Several hours after the January 27, 2015, IEP team meeting, other students 4 reported that Student had confronted two peers during lunch break and threatened, using 5 profanity, to retaliate against them for “ratting” on him regarding the Controlled 6 Substance Incident. A.F. rubbed his hands together and told the students “well this 7 oughta be fun.” When one of the students responded that he did not “rat” on Student, 8 Student responded “that’s OK I’ll find out” [collectively A.F.’s misconduct on January 9 27, 2015, is referred to hereinafter as the “January Misconduct”]. 10 15. On February 3, 2015, the District held a manifestation review team 11 meeting regarding the January Misconduct. Parents attended with A.F. All of the 12 District IEP team members were present, including Special Education Director Sharon 13 Amrhein, and Placerita Principal Jan Hayes-Rennels, Ms. Ramirez, Assistant Principal 14 Pam Thompson, A.F.’s special education case manager, his general education teacher, 15 and his school counselor. 16 16. Ms. Ramirez completed an “IEP Manifestation Determination Assessment” 17 [“February Manifestation Assessment”] at the February 3, 2015, meeting. She reported 18 the behavior was seeking revenge for an incident that occurred at Placerita in October 19 2014. She concluded the function of the behavior was to gain peer approval and avoid 20 peer conflict. She, also, concluded the behavior was not a manifestation of A.F.’s 21 disability. She reasoned that, as to A.F’s ADHD, school documentation reported 22 A.F.’s impulsive behaviors occurred in the classroom; he did not follow teacher 23 directives; he left his seat; and talked out of turn. In Ms. Ramirez’s opinion, these 24 behaviors were not consistent with the January Misconduct, which occurred during an 25 unstructured lunch period. Ms. Ramirez determined that A.F.’s emotional disturbance 26 caused depression and inappropriate feelings under normal circumstances. She opined 27 that A.F.’s threats of retaliatory harm to other students on January 27, 2015, were not 28 consistent with depression or inappropriate feelings as previously manifested by him. Findings of Fact and Conclusions of Law – Page 4 of 16 1 17. Parents thought the District staff had predetermined that they wanted A.F. 2 out of the District. Parents claimed that the meeting was very short. A.F.’s father 3 thought that the District staff was throwing A.F. “to the curb[,]” that the meeting was 4 not a team effort, and the mood was the District against Plaintiffs. Neither Parent 5 recalled the team discussing Ms. Ramirez’s conclusions on the February Manifestation 6 Assessment. A.F.’s father. did not recall the team discussing A.F.’s behavioral history. 7 A.F. was, then placed in home schooling pending expulsion proceedings. 8 18. On April 21, 2015, A.F. and his father signed an agreement suspending 9 the expulsion [the “Agreement”]. Under the Agreement, A.F. was placed on a 10 “probationary status subject to revocation by the [District’s] governing board [the 11 “Governing Board”] in accordance with Section G of the Agreement.” Section G of 12 the Agreement provided, inter alia, that A.F.’s suspended expulsion could be revoked 13 in the event that, inter alia, A.F. violated the District’s — or a school site’s — “rules 14 and regulations regarding pupil conduct[.]” Section G, further, provided that 15 “[r]evocation of the suspension of the expulsion order shall result in expulsion of the 16 Student under the terms of the original expulsion order without the benefit of a 17 hearing.” 18 19. 19 20 A.F. began the 2015-2016 school year at Sequoia Charter High School [“Sequoia”]. 20. On August 25, 2015, two Sequoia students reported to staff that, during 21 the lunch break, A.F. captured a lizard from the side of the building, twisted its neck 22 and broke off its head, and then dropped the carcass on the ground in the presence of 23 other students. A.F. went to the classroom and showed the lizard’s blood on his hand 24 to other classmates, who became upset. He told them he did not feel bad about killing 25 the lizard because he was “a psychopath.” A.F., also, shared the incident with his 26 teacher; showed the dead lizard to another classmate; and told the teacher he was 27 reading “The Anarchist’s Cookbook” [collectively A.F.’s misconduct on August 25, 28 2015, is referred to hereinafter as the “August Misconduct”]. Findings of Fact and Conclusions of Law – Page 5 of 16 1 2 3 21. On August 26, 2015, the District suspended A.F. from school for one day, without holding a manifestation review meeting regarding the August Misconduct. 22. On September 8, 2015, Ms. Hunter informed Parents in writing that A.F.’s 4 one-day suspension was a violation of the Agreement, and he was immediately expelled. 5 The expulsion resulted in a disciplinary change of placement for more than 10 days. 6 23. On February 19, 2016, A.F., by and through his Parents, filed a due 7 process hearing request against the District. The request stated claims that required both 8 an expedited and non-expedited hearing. The expedited hearing occurred on March 9 22-24, 29, and 30, 2016. The non-expedited hearing occurred on August 23-25, and 29 10 -31, 2016. OAH Administrative Law Judge Adrienne L. Krikorian heard both cases. 11 12 13 24. After May, 2016, Parents engaged Dr. Lauren Stevenson to conduct an independent educational evaluation of A.F. 25. At the August, 2016, administrative hearing, Dr. Stevenson presented a 14 29-page abbreviated evaluation report. 15 November, 2016. To prepare the report, Dr. Stevenson reviewed at least 500 pages of 16 records and met with A.F. three times for a total of about 9-12 hours. Dr. Stevenson’s 17 findings were based on: standardized testing of A.F. with multiple testing instruments, 18 a multi-day clinical interview, and behavioral observations. Dr. Stevenson, also, spoke 19 with Parents, one of his prior teachers, and two school psychologists. 20 Stevenson’s independent psychological evaluation, she provisionally diagnosed A.F. 21 with borderline personality disorder, a “very serious diagnosis.” Dr. Stevenson 22 described borderline personality disorder as the “pervasive presentation of individuals 23 with unstable relationships and mood,” and an “unstable sense of self,” which “leads 24 to attempts to avoid rejection and abandonment.” Dr. Stevenson described individuals 25 with borderline personality disorder as engaging in “self-harm and suicidal ideation,” 26 as well as aggression and anger that is “difficult to control.” 27 28 26. She issued a final evaluation report in In Dr. A.F.’s borderline personality disorder “necessitates therapeutic intervention specifically tailored to his emotional and mental health needs” in the form of dialectical Findings of Fact and Conclusions of Law – Page 6 of 16 1 behavioral therapy. (Emphasis in original). Dr. Stevenson explained that the research 2 on borderline personality disorder is clear that Educationally Related Intensive 3 Counseling Services [“ERICS”] counseling, or “treatment as usual” is not an effective 4 intervention. Dr. Stevenson, further, concluded that A.F. “requires a comprehensive 5 program that implements the full range of [Dialectical Behavioral Therapy or DBT] . 6 . . services - to include a weekly individual session, a weekly group skills session, 7 phone consultation provided as needed by the individual therapist, and the weekly 8 therapist consultation service. All four of the above listed components are required for 9 a program to be considered providing DBT clinical services.” 10 27. Dr. Stevenson opined that, with dialectical behavioral therapy, A.F. should 11 be able to develop prosocial skills, graduate from high school, and transition into an 12 independent adult life. But she was very worried about the trajectory of A.F.’s 13 disability without appropriate intervention. 14 28. Dr. Stevenson testified that she was aware of outpatient programs offering 15 comprehensive dialectical behavioral therapy in Los Angeles County. 16 November, 2016 report, she listed several such placements. 17 18 29. In her Any Finding of Fact erroneously categorized below as a Conclusion of Law is hereby incorporated into these Findings of Fact. 19 CONCLUSIONS OF LAW 20 21 1. Where, as here, the parties appeal an administrative decision and do not 22 request that the Court hear additional evidence, the Court “shall receive the records of 23 the administrative proceedings . . . and . . . basing its decision on the preponderance 24 of the evidence, shall grant such relief as the court determines is appropriate.” 20 25 U.S.C. § 1415(i)(2)(c). 26 2. The Court “read[s] the administrative record, consider[s] the new evidence, 27 and make[s] an independent judgment based on a preponderance of evidence and giving 28 due weight to the hearing officer’s determinations.” Capistrano Unified Sch. Dist. v. Findings of Fact and Conclusions of Law – Page 7 of 16 1 2 Wartenberg By & Through Wartenberg, 59 F.3d 884, 892 (9th Cir. 1995). 3. The “[C]ourt’s independent judgment is not controlled by the hearing 3 officer’s recommendations, but neither may it be made without due deference.” 4 Capistrano, 59 F.3d at 892. The Court gives the administrative officer’s judgments 5 particular deference when “they are thorough and careful.” Union Sch. Dist. v. Smith, 6 15 F.3d 1519, 1524 (9th Cir. 1994). 7 4. The Court will “not substitute [its] . . . own notions of sound educational 8 policy for those of the” District. Wilson v. Marana Unified Sch. Dist. No. 6 of Pima 9 Cty., 735 F.2d 1178, 1183 (9th Cir. 1984). 10 5. “In an action for judicial review of an administrative decision, the burden 11 of persuasion rests with the party challenging the ALJ’s decision.” L.M. v. Capistrano 12 Unified Sch. Dist., 556 F.3d 900, 910 (9th Cir. 2009). 13 6. “A child receives a” Free Appropriate Public Education [“FAPE”], “for 14 purposes of the IDEA, if the program addresses the child’s unique needs, provides 15 adequate support services so that the child can take advantage of educational 16 opportunities, and is in accord with the IEP.” L.J. by & through Hudson v. Pittsburg 17 Unified Sch. Dist., 850 F.3d 996, 1003 (9th Cir. 2017). 18 19 20 7. The District “must comply both procedurally and substantively with the IDEA.” L.J., 850 F.3d at 1003. 8. In considering whether A.F. “received a FAPE in compliance with the 21 IDEA, the” Court must conduct both a procedural and substantive inquiry. See L.J., 22 850 F.3d at 1003. 23 9. “Where a court identifies a procedural violation that denied a student a 24 FAPE, the court need not address the second substantive prong of the inquiry.” L.J., 25 850 F.3d at 1003. 26 10. “Not all procedural violations constitute a denial of a FAPE.” L.J., 850 27 F.3d at 1003. “A child is denied a FAPE when procedural inadequacies result in the 28 loss of an educational opportunity, or seriously infringe on the parents’ opportunity to Findings of Fact and Conclusions of Law – Page 8 of 16 1 2 3 4 participate in the IEP formulation process.” L.J., 850 F.3d at 1003. 11. “A procedural error is harmless if the student is substantively ineligible for IDEA benefits.” L.J., 850 F.3d at 1003. 12. An IEP for a disabled child is measured at the time that it was created 5 based on the information then known. Adams v. State of Oregon, 195 F.3d 1141, 1149 6 (9th Cir. 1999). This evaluation standard is known as the “snapshot rule.” J.W. v. 7 Fresno Unified School Dist., 626 F.3d 431, 439 (9th Cir. 2010). 8 9 Whether the District failed to comply with the IDEA's manifestation determination 10 provision when it failed to hold a manifestation determination team meeting regarding the 11 August Misconduct, before the District reinstated A.F.'s previously suspended expulsion? 12 13. The Court holds that the ALJ’s decision of the fifth issue in the Expedited 13 Decision was thorough and careful. Accordingly, the Court accords that decision 14 substantial deference. 15 16 17 14. Further, no argument or evidence presented proves the District’s claim by a preponderance of the evidence. 15. Indeed, when asked, at trial, what authority supports the proposition that 18 the District lawfully failed to provide a manifestation hearing, the District could not 19 point to a single authority. Instead, the District noted that California law permits the 20 use of suspended expulsions, and the IDEA is silent as to whether the revocation of a 21 suspended expulsion triggers the District’s duty to hold a manifestation determination 22 meeting. 23 16. As the ALJ observed, however, the fact that California law permits 24 suspended expulsions, by itself, does not abrogate the District’s obligations under 25 federal law, including IDEA’s requirement that the District hold a manifestation 26 determination meeting upon deciding to change the placement of a student with 27 disabilities. 28 17. Further, at trial, the District represented that its proposed reading of IDEA Findings of Fact and Conclusions of Law – Page 9 of 16 1 would permit the District to discipline A.F. even if the August Misconduct was a 2 manifestation of his disability. Such a result cannot be squared with IDEA’s purpose 3 to, inter alia, “to protect the educational rights of [disabled] . . . students.” See Doug 4 C. v. Hawaii Dep’t of Educ., 720 F.3d 1038, 1046 (9th Cir. 2013). 5 18. Lastly, the Court is not persuaded that A.F. waived his rights under IDEA. 6 The Agreement does not contain an express waiver of rights under IDEA. In fact, only 7 California law is expressly referenced in the Agreement. As such, A.F. did not 8 expressly waive his rights under IDEA. Moreover, to the extent that the Agreement is 9 ambiguous, it must be interpreted against the District. See Cal. Civ. Code § 1654. 10 19. Therefore, the Court affirms the ALJ’s judgment on this issue. 11 12 Whether the District denied A.F. a FAPE under the regulations of Section 504 of the 13 Rehabilitation Act? 14 15 16 17 18 20. Plaintiffs’ third claim, here, was not addressed in the Expedited or Non- Expedited Decisions. 21. As an initial matter, Plaintiffs’ 504 claim was outside the jurisdiction of OAH and, therefore, is not properly before this Court. 22. Moreover, even assuming arguendo that the Section 504 claim was 19 properly before the Court, Plaintiffs’ third claim fails because Plaintiffs failed to present 20 sufficient evidence. 21 23. To prevail on a Section 504 claim, a plaintiff must establish that, inter alia, 22 he was denied the benefits of the program solely by reason of his disability. Duvall v. 23 County of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001) (emphasis added). This 24 “requires a comparison between the treatment of disabled and nondisabled children, 25 rather than simply requiring a certain set level of services for each disabled child.” 26 Mark H. v. Lemahieu, 513 F.3d 922, 933, 936 (9th Cir. 2008). 27 28 24. Plaintiffs, inter alia, failed to present the requisite comparative analysis. Consequently, Plaintiffs have not proven their Section 504 claim by a preponderance Findings of Fact and Conclusions of Law – Page 10 of 16 1 of the evidence. 2 25. Accordingly, the Court affirms OAH’s dismissal of this issue. 3 4 Whether the District denied A.F. a FAPE under the IDEA? 26. 5 Plaintiffs’ second claim, here, is based on the ALJ’s decision of all issues 6 in the Non-Expedited Decision, and the ALJ’s decision of the third issue in the 7 Expedited Decision. 27. 8 9 The ALJ’s decision on these matters was thorough and careful. Accordingly, the Court accords these decisions substantial deference. 28. 10 Further, the Plaintiffs have not proven their second claim by a 11 preponderance of the evidence. 12 procedural violations throughout the relevant period, no violation individually — and 13 no violations cumulatively — resulted in the deprivation of parental participation or the 14 denial of FAPE or educational benefit for A.F. 29. 15 Although the District did commit a number of Accordingly, the Court affirms ALJ’s decisions on these issues. 16 17 Whether the District unlawfully changed A.F.’s educational placement in violation of the 18 IDEA? 19 20 21 30. Plaintiffs’ first claim, here, is based on the ALJ’s decision of the first issue in the Expedited Decision. 31. For disciplinary changes in a placement greater than 10 consecutive school 22 days (or that are a pattern that amounts to a change of placement), the disciplinary 23 measures applicable to students without disabilities may be applied to a special 24 education student if the conduct resulting in discipline is determined not to have been 25 a manifestation of the special education student’s disability [“Manifestation 26 Determinations”]. 20 U.S.C. § 1415(k)(c). 27 28 32. To conduct a Manifestation Determination, “the parent, and relevant members of the IEP Team . . . review all relevant information in the student’s file to Findings of Fact and Conclusions of Law – Page 11 of 16 1 determine[,]” inter alia, “if the conduct in question was caused by, or had a direct and 2 substantial relationship to, the child’s disability.” 3 (emphasis added). “[R]elevant information” includes the student’s “IEP, any teacher 4 observations, 5 §1415(k)(1)(E)(I). 6 7 8 33. and any relevant information 20 U.S.C. § 1415(k)(1)(E)(I) provided by the parents[.]” The ALJ’s decision on this issue was not thorough and careful and therefore, the Court accords the ALJ’s decision minimal deference. 34. The ALJ, effectively, required Plaintiffs to disprove Ms. Ramirez’s 9 assessment, and placed outsized emphasis on Plaintiffs’ lack of expert testimony 10 disproving Ms. Ramirez’s assessment. The ALJ concluded that Plaintiffs failed to 11 prove this claim because they “offered no opinions from a professional therapist or 12 school psychologist qualified to opine as to the validity of District’s manifestation 13 determination.” The evidence that Plaintiffs did provide, the ALJ concluded, “offered 14 no credible evidence that discredited Ms. Ramirez’s credible professional opinions... 15 or the findings of the professional and experienced District staff members of the 16 manifestation review team, which included Ms. Amrhein, Ms. Hunter, Ms. Ramirez, 17 Ms. Hayes-Rennels, Ms. Thompson, Student’s special education case manager, his 18 general education teacher, and his school counselor.” Moreover, the ALJ reasoned, 19 “neither parent had any professional experience in education or school psychology 20 sufficient to discredit the conclusions of the District’s professional staff, who 21 unanimously agreed the behavior was not a manifestation of [A.F.’s] . . . disabilities.” 22 35. With respect to A.F.’s significant past history of threatening behavior, the 23 ALJ dismissed Plaintiffs’ arguments, reasoning that Plaintiffs “offered no credible 24 evidence, including testimony from an expert, proving that any of Student’s past history 25 of behaviors were relevant to Student’s threats of retaliation on January 27, 2015.” The 26 ALJ held that Plaintiffs “offered no expert testimony proving that his actions were not 27 preplanned, as Ms. Ramirez opined, but instead were impulsive and related to his 28 ADHD; or that his actions were caused by or had a direct and substantial relationship Findings of Fact and Conclusions of Law – Page 12 of 16 1 2 3 4 to his disability of emotional disturbance.” 36. In the absence of evidence from Plaintiffs, the ALJ relied on the District’s employees — placing particular weight on Ms. Ramirez’s conclusions and experience. 37. The ALJ reasoned as follows: A.F.’s “threatening behavior was 5 pre-planned and not impulsive; [A.F.] . . . came to school on January 27, 2015, having 6 already informed other students that he was looking for the students who ‘ratted him 7 out’ in October 2014. He confronted those students after he returned to school on 8 January 27, and showed no remorse that day or the next when Ms. Thompson 9 interviewed him. His behavior had no direct and substantial relationship to his ADHD, 10 which manifested itself in the classroom. Ms. Ramirez was an experienced school 11 psychologist who understood [A.F.]’s disabilities. She reviewed [A.F.]’s educational 12 records, previous psychoeducational assessment reports and prior IEP’s [sic].” 13 38. Having done so, the ALJ did not thoroughly and carefully analyze whether 14 Ms. Ramirez’s determination could be reconciled with A.F.’s extensive history, 15 documented in A.F.’s school records, of making threats dating back to at least the 16 second grade. Instead, the ALJ, effectively, treated the absence of expert testimony 17 disputing Ms. Ramirez’s conclusions as the absence of any evidence demonstrating a 18 substantial relationship between A.F.’s threats on January 27, 2015, and his emotional 19 disturbance disability. Moreover, the ALJ failed to address the relevance of the fact 20 that Ms. Ramirez did not have all of the relevant data required to create an IEP — 21 which was the reason the District postponed the finalization of A.F.’s January 27, 2015, 22 IEP for thirty days — with respect to her determination that the January Misconduct 23 was not a manifestation of A.F.’s disability on February 3, 2015. 24 particularly relevant in light of the ALJ’s observation that the District had a duty to 25 review “[a]ll relevant information” “across settings and across times.” 26 39. This fact is Applying the snapshot rule, Plaintiffs have proven by a preponderance of 27 the evidence that the January Misconduct was, indeed, a manifestation of A.F.’s 28 disability. Findings of Fact and Conclusions of Law – Page 13 of 16 40. 1 Although Plaintiffs did not present evidence, such as expert opinion, 2 challenging Ms. Ramirez’s conclusions, ample evidence from A.F.’s school records 3 called Ms. Ramirez’s conclusions into question. Indeed, A.F.’s history of threatening 4 behavior dates back over a decade. 41. 5 That A.F.’s conduct was “pre-planned” is not sufficient to demonstrate that 6 the January Misconduct was not substantially related to A.F.’s disability. 7 significant history of making threats includes instances in which his threats were 8 retaliatory or included some pre-planning — such as his plan to exact revenge on his ex- 9 girlfriend. Indeed, the Gun Threat Incident, mere days earlier, demonstrated elements 10 of pre-planning. 11 42. A.F.’s Thus, in light of A.F.’s significant history of making threats, and the ALJ’s 12 insufficient analysis of that history, the Court reverses the ALJ’s decision on Plaintiffs’ 13 claim one. 14 15 Remaining Issues 16 43. In light of this Court’s reversal on Plaintiffs’ first claim, all remaining 17 issues on appeal — issues 2 and 4 in the Expedited Decision — are moot and will be 18 vacated. 44. 19 Any conclusion of law erroneously categorized as a Finding of Fact is 20 hereby incorporated into these Conclusions of Law. 21 // 22 // 23 // 24 // 25 // 26 Accordingly, 27 28 It is Ordered that Plaintiffs’ first claim (asserted in case number CV 16-05117 Findings of Fact and Conclusions of Law – Page 14 of 16 1 TJH) was established by a preponderance of the evidence. 2 3 It is Further Ordered that Plaintiffs’ second and third claims (asserted in case 4 numbers CV 16-05117 TJH and CV 17-00479 TJH), and Defendant’s only claim 5 (asserted in case number CV 17-00479 TJH) were not established by a preponderance 6 of the evidence. 7 It is Further Ordered that issue 1 in the Expedited Decision be, and hereby 8 9 is, Reversed. 10 It is Further Ordered that issues 2 and 4 in the Expedited Decision be, and 11 12 hereby are, Vacated. 13 It is Further Ordered that issues 3 and 5 in the Expedited Decision, and all 14 15 issues in the Non-Expedited Decision be, and hereby are, Affirmed. 16 It is Further Ordered that the dismissal of Plaintiffs’ Section 504 claim be, 17 18 and hereby is, Affirmed. 19 20 It is Further Ordered that the District shall convene an IEP meeting within 21 30 days of this Order and develop an IEP for A.F. which provides him with a FAPE. 22 This IEP shall include at least the following components: (1) Comprehensive dialectical 23 behavioral therapy for the 2017-2018 school year; (2) Accurate present levels of 24 performance; and (3) Appropriate goals. 25 // 26 It is Further Ordered that the District shall amend A.F.’s February 3, 2015, 27 IEP to reflect that the behavior was a manifestation of his emotional disturbance 28 disability. Findings of Fact and Conclusions of Law – Page 15 of 16 1 It is Further Ordered that the District shall reverse A.F.’s expulsion and 2 expunge any records describing it, specifically the expulsion packet; the alleged 3 stipulated suspended expulsion agreement and the Board approval of that document; 4 entries in Infinite Campus regarding the expulsion; and the September, 2015, 5 communications regarding the suspended expulsion. 6 7 8 Date: August 2, 2017 9 ___________________________________ 10 Terry J. Hatter, Jr. Senior United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Findings of Fact and Conclusions of Law – Page 16 of 16

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