R. et al v. Matayoshi et al
Filing
31
ORDER AFFIRMING IN PART AND REVERSING IN PART THE HEARINGS OFFICER'S OCTOBER 11, 2010 DECISION. ~ Excerpt of Conclusion: The Court AFFIRMS the Decision to the extent that it dismissed the portion of Plaintiffs 039; 2009-2010 Request for Impartial Hearing seeking to enforce the Settlement Agreement. The Court REVERSES the Decision to the extent that it dismissed: 1) the portion of Plaintiffs' 2009-2010 Request for Impartial Hearing alleging that Studen t's March 3, 2009 IEP and October 28, 2009 IEP did not provide a FAPE; and 2) the portion of the RIH challenging the failure to review Student's math and reading goals. The Court REMANDS this case to the DCCA to reassign the case to another hearings officer to rule upon those issues, and REQUESTS that the DCCA expedite this matter to the fullest extent possible...." ~ Signed by JUDGE LESLIE E. KOBAYASHI on 6/17/2011. (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). All Participants are registered to receive electronic notifications.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JUSTIN R., by and through his )
mother JENNIFER R.,
)
)
)
Plaintiffs,
)
vs.
)
)
KATHRYN MATAYOSHI, in her
)
)
official capacity as
Superintendent of the Hawai’i )
)
Public Schools; and
)
DEPARTMENT OF EDUCATION,
)
STATE OF HAWAII,
)
)
Defendants.
_____________________________ )
CIVIL NO. 10-00657 LEK-RLP
ORDER AFFIRMING IN PART AND REVERSING IN PART
THE HEARINGS OFFICER’S OCTOBER 11, 2010 DECISION
Before the Court is an appeal by Plaintiffs Justin R.,
by and through his mother, Jennifer R. (collectively
“Plaintiffs”) of the administrative hearings officer’s (“Hearings
Officer”) Findings of Fact, Conclusions of Law and Decision
(“Decision”), filed on October 11, 2010.
Plaintiffs filed their
Opening Brief in the instant case on February 28, 2011.
Defendants Kathryn Matayoshi, in her official capacity as
Superintendent of the Hawaii Public Schools, and the Department
of Education, State of Hawai`i (“the DOE”, both collectively
“Defendants”) filed their Answering Brief on March 28, 2011, and
Plaintiffs filed their Reply Brief on April 25, 2011.
heard oral argument in this matter on May 16, 2011.
The Court
Appearing on
behalf of Plaintiffs was Irene Vasey, Esq., and appearing on
behalf of Defendants was Gary Suganuma, Esq.
On May 19, 2011,
Plaintiffs filed a supplement regarding their citation of
unpublished cases in their briefs.
After careful consideration
of the parties’ briefs, the arguments of counsel, and the
relevant legal authority, the Decision is HEREBY AFFIRMED IN PART
AND REVERSED IN PART because, although the Hearings Officer
correctly ruled that he lacked jurisdiction over the portion of
Plaintiffs’ request for impartial hearing seeking to enforce a
settlement agreement between the parties, the Hearings Officer
had jurisdiction over, and should have ruled upon, the remainder
of Plaintiffs’ request, including the allegation that two of
Student’s individualized educational programs failed to provide
him a free and appropriate public education.
BACKGROUND
Plaintiffs filed their Complaint on November 10, 2010
pursuant to the Individuals with Disabilities Education Act of
2004 (“IDEA”), 20 U.S.C. § 1400 et seq.
Plaintiffs appeal from
the Hearings Officer’s Decision dismissing Plaintiffs’ Request
for Impartial Hearing for lack of subject matter jurisdiction.1
Defendants filed their Answer on December 2, 2010.
I.
Factual and Administrative Background
At the time of the Decision, Justin R. (“Student” or
1
The Decision can be found in the Administrative Record on
Appeal (“ROA”) at 75-85 and as Exhibit A to the Complaint (dkt.
no. 1-1).
“Justin”) was seventeen years old and a senior at Kailua High
School.
He has been eligible for IDEA services since 2000.
The
DOE originally classified Student under the category of Mental
Retardation, but the DOE retested him in October 2003.
In or
around April 2004, the DOE reclassified him under the category of
Other Health Impaired.
[Decision at 4.]
In a May 22, 2009
report, Peggy Murphy-Hazzard, Psy.D., diagnosed Student with
attention deficit hyperactivity disorder (“ADHD”), oppositional
defiant disorder, receptive-expressive language disorder, and
learning disorders, not otherwise specified.
Dr. Murphy-Hazzard
recommended, inter alia, one-to-one tutoring to remediate
Student’s math, reading, and writing skills.
[ROA, Pets.’ Exh.
21 at 9 (ROA pg. 137).]
A.
2008-2009 Request for Impartial Hearing
On February 12, 2009, Plaintiffs filed a Request for
Impartial Hearing, identified as Docket Number DOE-SY0809-088
(“2008-2009 RIH”).
at 4.]
[ROA, Pets.’ Exh. 1 (ROA pgs. 1-4); Decision
The hearing on the 2008-2009 RIH was originally scheduled
for April 2009, but was continued until November 2009 based on
Plaintiffs’ request.
On or about November 9, 2009, Plaintiffs
and the DOE began negotiating a settlement of the issues raised
in the 2008-2009 RIH.
[Decision at 4-5.]
Jennifer R. (“Mother”)
and the DOE executed a Settlement Agreement on January 12, 2010.
[ROA, Pets.’ Exh. 3 (“Settlement Agreement”) (ROA pgs. 9-10).]
The terms of the Settlement Agreement were, in pertinent part:
2)
DOE agrees to provide remedial after school
tutoring for one hour on school days for the
remainder of [school year (“SY”)] 09-10 and
first semester SY 10-11. Tutoring will be in
a small group not to exceed six students.
Student will be provided specialized
instruction in math and reading.
3)
DOE agrees to provide two four-hour tutoring
sessions a week from June 1-July 30, 2010.
Tutoring will be in a small group not to
exceed six students. Student will be
provided specialized instruction in math and
reading.
. . . .
5)
If Justin is accepted into the ETC automotive
training program at Honolulu Community
College during the second semester SY 20102011, DOE will pay for the tuition costs.
6)
If Justin successfully completes the ETC
automotive training program at Honolulu
Community College (HCC) during the second
semester SY 2010-2011, DOE will pay tuition
costs for four semesters at HCC if Justin is
working towards his associative degree in
automotive mechanics. . . .
7)
If Justin is not accepted into the ETC
automotive training program at HCC but
graduates from high school with a diploma,
DOE will pay tuition costs for four semesters
at HCC towards Justin’s associative degree in
automotive mechanics. . . .
. . . .
[Id. at 1-2.]
The Settlement Agreement also states: “The parties
agree to release each other, not sue each other, and discharge
each other from any and all claims or actions arising out of,
resulting from, or connected with any and all issues relating to
the student’s education up to, through, and including the date of
the petition for impartial due process hearing.”
[Id. at 2.]
B.
2009-2010 Request for Impartial Hearing
During the pendency of the proceedings on the 2008-2009
RIH, Student’s individualized educational program (“IEP”) team
met on or about March 3, 2009.
Mother attended this meeting.
Based on information presented during that meeting, the team
developed an IEP for Student (“March 3, 2009 IEP”).2
Student’s
IEP team also met on or about October 28, 2009, with Mother in
attendance.
Based on information presented during that meeting,
the team developed another IEP for Student (“October 28, 2009
IEP”).3
[Decision at 4.]
On June 18, 2010, Plaintiffs submitted a Request for
Impartial Hearing, identified as Docket Number DOE-SY0910-141
(“2009-2010 RIH”).4
It was filed with the Department of Commerce
and Consumer Affairs (“DCCA”) on June 22, 2010.
The 2009-2010
RIH challenged various aspects of the March 3, 2009 IEP and the
October 28, 2009 IEP.
[ROA at 5.]
In addition, it alleged that
the “DOE failed to convene an IEP meeting following the
January 2010 settlement agreement to incorporate the terms of the
agreement into Justin’s IEP, and failed to provide the services
2
The March 3, 2009 IEP and the three associated Prior
Written Notices (“PWN”) for that IEP are in the ROA as
Petitioners’ Exhibit 12. [ROA at 58-73.]
3
The October 28, 2009 IEP and the PWN associated therewith
are in the ROA as Petitioners’ Exhibit 13. [ROA at 74-85.]
4
The 2009-2010 RIH can be found in the ROA at 3-7. The
2009-2010 RIH is not consecutively paginated. All citations to
the 2009-2010 RIH refer to the page numbers in the ROA.
and supports agreed upon.”
[Id.]
Plaintiffs’ proposed
resolutions included the following:
1.
One-to-one tutoring in reading after school 1
hour per day. Reading materials will include
subjects applicable to preparing Justin for his
goal of becoming an automotive mechanic.
2.
One-to-one tutoring in math after school 1
hour per day. (either during open/study period or
after school.
3.
One hour of 1:1 make-up reading tutoring
three times per week beginning immediately with
the 2010 summer [extended school year (“ESY”)]
program and continuing until two hours per day for
8 weeks has been provided.
4.
One hour of 1:1 make-up math tutoring twice
per week beginning immediately with the 2010
summer ESY program and continuing until two hours
per day for 8 weeks has been provided.
5.
Provision of a compensatory remedial reading
program with measurable outcomes with the goal of
bringing Justin up to grade level reading
comprehension, or reimbursement of costs for a
private remedial reading program to provide same.
. . . .
[ROA at 7.]
The DOE filed its response to the 2009-2010 RIH with
the DCCA on June 28, 2010.
The DOE addressed the alleged defects
in the March 3, 2009 IEP and the October 28, 2009 IEP.
[ROA at
14-16.]
Plaintiffs filed their Opening Brief with the DCCA
(“Plaintiffs’ Hearing Opening Brief”) on August 31, 2010.5
5
Plaintiffs’ Hearing Opening Brief can be found in the ROA
at 30-38.
Plaintiffs emphasized that “Justin has had a difficult time in
school because of a lack of appropriate education plans in his
public school classes due to faulty IEPs.”
Br. at 2.]
[Pltfs.’ Hrg. Opening
Plaintiffs suggested that his original classification
as mentally retarded was never justified, and they noted that, in
September 2003, when Mother requested that the DOE reevaluate
him, the DOE responded that he was not capable of education
within the general student population because of his mental
retardation and ADHD.
[Id.]
Plaintiffs asserted that, although
Student’s classification was drastically changed in April 2004,
“teachers and other I.E.P. team member’s perceptions and
expectations of Justin’s academic abilities did not appear to
alter[.]”
[Id. at 2-3.]
As a result, Student’s reading and math
standardized test scores remained at an elementary school level,
although his IEPs have consistently reflected his goal of
graduating and pursuing a career as an automotive technician.
Plaintiffs argued that Student’s reading and math skills were no
where near the level necessary for him to successfully attend
automotive training classes in community college.
[Id. at 3.]
Plaintiffs stated:
In order to achieve his goals, Justin must
significantly improve both his reading and math
skills in this, his final year of high school, in
order to continue onto the secondary education
promised him by DOE (see discussion of Exhibit “A”
in paragraph (C) below).[6]
6
Exhibit A to Plaintiffs’ Hearing Opening Brief is the
Settlement Agreement, [ROA at 35-36,] and Section I.C. of
Justin requires immediate, intensive, and
frequent 1:1 remedial tutoring in both math and
reading, as well as a 1:1 tutor to assist him with
his daily class work and homework assignments.
[Id.]
Plaintiffs emphasized that Student’s IEP team never
incorporated the terms of the Settlement Agreement into Student’s
IEP and that the team never met to discuss alterations in
Student’s post-high school transition plan to reflect his
anticipated community college attendance.
[Id. at 4.]
Plaintiffs argued that, because the DOE did not provide
the services promised in the Settlement Agreement, Student had a
critical need to accelerate his learning curve in reading and
math to allow him to obtain his diploma and continue on to
community college.
[Id. at 4-5.]
Finally, Plaintiffs reiterated
their requests, including “[f]or DOE to agree to honor their
prior agreements contained in the settlement agreement executed
January 12, 2010 and incorporate its terms into Justin’s IEP
plan[.]”
[Id. a 5 (citation omitted).]
The Hearings Officer conducted a hearing on the
2009-2010 RIH on September 8 and September 10, 2010.
at 3.]
[Decision
The parties then submitted written closing arguments.
[ROA at 41-57 (DOE’s Closing Brief), 58-74 (Petitioners’ Closing
Brief).]
Plaintiffs’ Closing Brief to the Hearing Officer
emphasized their argument that Student’s March 3, 2009 IEP and
October 28, 2009 IEP were procedurally and substantively flawed
Plaintiffs’ Hearing Opening Brief discusses the Settlement
Agreement [ROA at 32-33].
and did not provide him with a free and appropriate public
education (“FAPE”).
[ROA at 59-69.]
One component of that
argument was that the DOE failed to incorporate the terms of the
Settlement Agreement into Student’s IEPs.
[ROA at 68-69.]
Plaintiffs stated that they sought one-to-one tutoring for
Student, as opposed to the small group tutoring provided in the
Settlement Agreement, “due to Justin’s need for more focused and
accelerated instruction due to the shorted time frame.”
71.]
[ROA at
Plaintiffs, however, reiterated their request that the DOE
agree to honor the Settlement Agreement and incorporate its terms
into Student’s IEP.
Plaintiffs also asked that an IEP team
meeting be held to review Student’s goals and objectives, and
make any appropriate changes, in light of the revisions to
Student’s objectives.
[ROA at 72.]
In the Decision, the Hearings Officer identified the
issues presented in the 2009-2010 RIH as:
1.
Whether any of the terms of the Settlement
Agreement dated January 12, 2010 have ever
been integrated into Student’s individual
education plan; and whether an IEP containing
student’s [sic] agreed upon tutoring sessions
or his altered transitional plan for posthigh school automotive training at DOE
expense has been issued, or even discussed by
the IEP team.
2.
Whether student’s [sic] October 28, 2009 IEP
annual goal to “advance from the novice to
the proficient level as measured on the HCPS
III Reading Comprehension Rubric for
Standard” and the attendant benchmarks are
measurable.
3.
Whether the small group after-school tutoring
in reading and math agreed to by the DOE in
the January 12, 2010 Settlement Agreement was
provided.
4.
Whether the specialized summer remedial
tutoring of four hours per week from June 1,
2010 to July 30, 2010, as agreed upon in the
January 12, 2010 Settlement Agreement was
provided.
5.
Whether the student’s [sic] Behavioral
Support Plan, as agreed upon in the January
12, 2010 Settlement Agreement, was
implemented and followed with respect to
student’s [sic] suspensions . . . .
[Decision at 3-4.]
In his findings of fact, the Hearings Officer
found that Plaintiffs made a specific demand to enforce the
Settlement Agreement.
The Hearings Officer also noted that
Plaintiffs’ demands for remedial tutoring were in response to the
DOE’s failure to comply with the Settlement Agreement.
6-7.]
[Id. at
The Hearings Officer also quoted a portion of Mother’s
testimony at the hearing in which she stated that, if the DOE had
performed its obligations under the Settlement Agreement, the
parties would not be in the hearing process.
When asked whether
she was taking the position that the Settlement Agreement was no
longer effective, Mother responded no and stated that they were
doing the reading tutoring and working on the math tutoring.
Mother, however, argued that, if the services had started in
January 2010 as promised, Student would be in a much better
position.
The Hearings Officer found that neither party
contested the binding and enforceable nature of the Settlement
Agreement.
[Id. at 7-8.]
In his conclusions of law and analysis, the Hearings
Officer concluded that:
In this case, Petitioners are clearly seeking
to enforce the provisions of the January 12, 2010
settlement agreement . . . . Each of Petitioners’
proposed resolutions in the instant matter either
derive from, or demand enforcement of, the January
12, 2010 Settlement Agreement. This enforcement
dispute is purely a matter of determining
Respondent’s obligation under the settlement
agreement and demands additional remedies
resulting from Respondent’s alleged breach of the
settlement agreement. It does not concern the
identification, evaluation or educational
placement of the Student or the provision of a
free and appropriate public education. Here,
Petitioners (sic) proposed resolutions are mooted
by the January 12, 2010 settlement agreement as
Petitioners are already entitled to their
resolutions through the agreement. The additional
services would be potential remedies of a breach
of contract action against Respondent.
[Decision at 9-10.]
The Hearings Officer therefore concluded
that he lacked subject matter jurisdiction and dismissed the
2009-2010 RIH.
The Hearings Officer noted that the decision did
not preclude any action by Plaintiffs against the DOE to enforce
the Settlement Agreement “in the proper forum.”
II.
[Id. at 10.]
Plaintiffs’ Opening Brief
In their Opening Brief in the instant case, Plaintiffs
emphasize that Student has not progressed academically, as
evidenced by his Hawaii State Assessment results from 2001 to
2009.
He consistently scored “well below proficiency” in math,
and went from “approaching proficiency” in reading in 2006 to
“well below proficiency” in 2008 and 2009.
[Opening Br. at 2-3
(citing PE7 31).]
As of October 2009, Student’s Stanford
Diagnostic Reading Test score was equivalent to grade 3.9.
at 3 (citing PE 13, p.2).]
[Id.
Plaintiffs state that Mother filed
the 2009-2010 RIH because she was extremely concerned about
Student’s ability to transition successfully to post-high school
education.
[Id. at 4.]
Plaintiffs acknowledge that, although the 2009-2010 RIH
and the evidence presented at the administrative hearing
addressed the specific ways the DOE failed to provide Student a
FAPE, the remedies sought focused on remedial reading and math
tutoring.
Plaintiffs, however, emphasize that the IEPs
challenged in the 2009-2010 RIH were not the same as those
challenged in the 2008-2009 RIH and that the requested tutoring
services in the 2009-2010 RIH were not the same as those promised
in the Settlement Agreement.
Mother essentially believes that
the tutoring called for in the Settlement Agreement is no longer
sufficient to prepare Student for graduation due to the fact that
the DOE failed to begin the tutoring immediately under the terms
of the Settlement Agreement.
Plaintiffs emphasize that, despite
the set backs, Student is still looking forward to graduating and
attending HCC.
Plaintiffs argue that the Hearings Officer abused his
discretion by dismissing their case based on lack of subject
matter jurisdiction.
7
Plaintiffs state that a special education
“PE” refers to the ROA, Petitioners’ Exhibit.
settlement agreement is generally considered a contract and is
subject to the general rules of contract interpretation.
Plaintiffs note that there is conflicting case law about whether,
and under what circumstances, a hearings officer has jurisdiction
over questions of compliance with a previous order or agreement.
Plaintiffs emphasize that they are not, and were not,
attempting to enforce the Settlement Agreement, nor are they
contending that the Settlement Agreement is void or otherwise
unenforceable.
They acknowledge that Mother testified at the
hearing that she believes the Settlement Agreement is still in
force and that she was satisfied with the Agreement.
Plaintiffs
contend that the instant case only seeks the provision of
intensified tutoring services because the March 2009 and
October 2009 IEPs are not appropriate.
Plaintiffs point out
that, in the DOE’s Closing Brief to the Hearings Officer, it
acknowledged that the 2009-2010 RIH sought more than the
enforcement of the Settlement Agreement.
[Id. at 13.]
Plaintiffs argue that a hearings officer has
jurisdiction to adjudicate claims that a defendant denied a
student a FAPE as a result of the defendant’s violation of prior
settlement agreement and that such claims are distinguishable
from claims that merely allege a breach of the agreement.
Plaintiffs contend that the Hearings Officer had subject matter
jurisdiction over their case because the Hearings Officer could
consider Defendants’ breach of the Settlement Agreement in a due
process proceeding based on the alleged denial of a FAPE.
Plaintiffs note that 20 U.S.C. § 1415(b)(6)(A) defines a hearings
officer’s jurisdiction, and they argue that nothing in that
provision precludes the hearings officer from taking jurisdiction
over a case in which a prior settlement agreement is at issue.
Plaintiffs contend that they established, by a preponderance of
evidence, that Defendants denied Student a FAPE and failed to
prepare him to transition from high school to post-secondary
education.
Plaintiffs also argue that the Hearings Officer had
jurisdiction because they could not have filed suit to enforce
the Settlement Agreement without first exhausting their
administrative remedies.
Further, their claims do not fall
within the time period covered by the waiver in the Settlement
Agreement.
The Settlement Agreement was expressly limited to the
period up to the filing of the 2008-2009 RIH, and the 2009-2010
RIH challenged IEPs formulated after that date.
Plaintiffs never
agreed to waive liability for those claims.
Plaintiffs assert that this Court should not accord
substantial deference to the Decision.
Plaintiffs emphasize that
the Hearings Officer conducted a full hearing on the merits and
that both sides presented oral and written evidence.
[Id. at 1.]
The Hearings Officer, however, did not discuss any of the
testimony or evidence, did not examine the issue whether
Defendants provided Student a FAPE, and did not attempt to
distinguish the terms of the Settlement Agreement from the issues
in the 2009-2010 RIH.
Plaintiffs contend that the Decision is
based on conclusory statements, and they argue that the Decision
is not the result of a thorough and careful analysis of the
evidence.
They urge the Court to give the Decision very little
deference.
Finally, Plaintiffs argue that the Court should reverse
the Hearings Officer’s ruling that there was no subject matter
jurisdiction, and they argue that the Court should examine the
administrative record and make a finding on the merits.
Plaintiffs contend that the Court should not remand the case for
the Hearings Officer to make a ruling on the merits because
Student is about to graduate from high school and will no longer
be eligible for IDEA services.
Further, the Hearings Officer has
left the DCCA and, on remand, another officer must familiarize
himself or herself with the case before ruling and may have to
re-call witness to testify.
[Opening Br. at 26.]
III. Defendants’ Answering Brief
In their Answering Brief, Defendants argue that
Plaintiffs’ evidence at the hearing focused on the DOE’s failure
to deliver, or delay in delivering, the tutoring services
required under the Settlement Agreement.
Plaintiffs’ position is
that the failure/delay adversely affected Student’s progress in
reading and math and therefore Student is entitled to additional
and more intensive tutoring services than provided for in the
Settlement Agreement to compensate for the lost progress.
Defendants argue that the Court should affirm the Decision, which
is supported by the applicable law and by credible evidence in
the record.
Defendants argue that the 2009-2010 RIH and Mother’s
testimony at the hearing provide ample evidence to support the
Hearings Officer’s finding that Plaintiffs were seeking to
enforce the Settlement Agreement.
In particular, Defendants
point to Mother’s testimony that the alleged breach of the
Settlement Agreement was the reason they filed the 2009-2010 RIH.
[Answering Br. at 9 (quoting ROA, Trans., Vol. 1, p. 91, lines 25, p. 112, lines 2-7).]
Defendants argue that the Court should
not reverse the Hearings Officer’s finding that Plaintiffs sought
to enforce the Settlement Agreement in the 2009-2010 RIH.
Defendants next argue that the Hearings Officer
correctly determined that he lacked jurisdiction to enforce the
Settlement Agreement.
Haw. Admin. R. § 8-60-61(a)(1) sets forth
the proper subjects of a due process complaint, and it does not
include the enforcement of settlement agreements.
Defendants
argue that the question whether Plaintiffs are entitled to any
missed or additional tutoring because of the DOE’s alleged breach
of the Settlement Agreement is an issue that a court could
decide; the issue does not present any technical issues which a
hearings officer should rule upon during a due process hearing.
Defendants emphasize that Plaintiffs did not offer any expert
testimony at the hearing.
In Defendants’ view, this case is
about the Settlement Agreement and what remedies may be available
for any breach thereof and the Hearings Officer correctly
determined that he did not have jurisdiction over the case.
IV.
Plaintiffs’ Reply Brief
In their Reply Brief, Plaintiffs emphasize that, by the
end of SY 2009-2010, neither Student’s March 2009 IEP or his
October 2009 IEP had been amended to add the services required in
the Settlement Agreement.
Further, Student did not receive any
remedial tutoring for the entire SY 2009-2010.
This prompted the
filing of the 2009-2010 RIH, in which Plaintiffs sought
compensatory education in the form of more intensive and more
frequent tutoring than provided for in the Settlement Agreement.
[Reply Br. at 3.]
Plaintiffs agree with the basic legal principles that:
1) a hearings officer has no mechanism to force parties to comply
with a settlement; and 2) a special education settlement
agreement is a contract that is subject to the interpretation
under contract law.
Plaintiffs, however, state that they are not
seeking to enforce the Settlement Agreement; they seek
compensatory education because the services provided in the March
2009 and October 2009 IEPs and in the 2010 ESY period were
insufficient.
[Id. at 3-4.]
Plaintiffs acknowledge that, if all they sought to do
was enforce the four-corners of the Settlement Agreement, the
dismissal of their case would have been proper.
Plaintiffs,
however, claimed that the failure to honor the Settlement
Agreement had a negative impact on Student’s educational progress
and resulted in a denial of FAPE.
[Id. at 4.]
Plaintiffs argue
that, in such cases, the hearings officer has jurisdiction over
the student’s claims and can consider the violation of the
settlement agreement as part of the analysis whether the
defendant denied the student a FAPE.
In conclusion, Plaintiffs ask the Court to: vacate the
Decision; find that the DOE denied Student a FAPE; and order the
compensatory educational relief that Plaintiffs have requested.
STANDARDS
I.
IDEA Overview
“The IDEA is a comprehensive educational scheme,
conferring on disabled students a substantive right to public
education and providing financial assistance to enable states to
meet their educational needs.”
Hoeft ex rel. Hoeft v. Tuscon
Unified Sch. Dist., 967 F.2d 1298, 1300 (9th Cir. 1992) (citing
Honig v. Doe, 484 U.S. 305, 310, 108 S. Ct. 592, 597, 98
L. Ed. 2d 686 (1988)).
It ensures that “all children with
disabilities have available to them a free appropriate public
education that emphasizes special education and related services
designed to meet their unique needs and prepare them for further
education, employment, and independent living[.]”
1400(d)(1)(A).
20 U.S.C. §
The IDEA defines FAPE as
special education and related services that –
(A) have been provided at public expense,
under public supervision and direction, and
without charge;
(B) meet the standards of the State
educational agency;
(C) include an appropriate preschool,
elementary school, or secondary school
education in the State involved; and
(D) are provided in conformity with the
individualized education program required
under section 1414(d) of this title.
20 U.S.C. § 1401(9).
To provide a FAPE in compliance with the
IDEA, a state educational agency receiving federal funds must
evaluate a student, determine whether that student is eligible
for special education, and formulate and implement an IEP.
generally 20 U.S.C. § 1414.
See
The IEP is to be developed by an
“IEP Team” composed of, inter alia, school officials, parents,
teachers and other persons knowledgeable about the child.
§ 1414(d)(1)(B).
II.
Standard of Review
The standard for district court review of an
administrative decision under the IDEA is set forth in 20 U.S.C.
§ 1415(i)(2)(C), which provides:
In any action brought under this paragraph, the
court –
(i) shall receive the records of the
administrative proceedings;
(ii) shall hear additional evidence at the
request of a party; and
(iii) basing its decision on the
preponderance of the evidence, shall grant
such relief as the court determines is
appropriate.
This standard requires that the district court give “‘due
weight’” to the administrative proceedings.
L.M. v. Capistrano
Unified Sch. Dist., 556 F.3d 900, 908 (9th Cir. 2009) (citations
omitted).
The district court, however, has the discretion to
determine the amount of deference it will accord the
administrative ruling.
J.W. ex rel. J.E.W. v. Fresno Unified
Sch. Dist., 626 F.3d 431, 438 (9th Cir. 2010) (citing Gregory K.
v. Longview Sch. Dist., 811 F.2d 1307, 1311 (9th Cir. 1987)).
In
reaching that determination, the court should consider the
thoroughness of the hearings officer’s findings, increasing the
degree of deference where said findings are “‘thorough and
L.M. v. Capistrano, 556 F.3d at 908 (quoting
careful.’”
Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 892
(9th Cir. 1995)).
The district court should give “substantial
weight” to the hearings officer’s decision when the decision
“evinces his careful, impartial consideration of all the evidence
and demonstrates his sensitivity to the complexity of the issues
presented.”
Cnty. of San Diego v. Cal. Special Educ. Hearing
Office, 93 F.3d 1458, 1466-67 (9th Cir. 1996) (citation and
quotation marks omitted)).
The burden of proof in an IDEA appeal proceeding is on
the party challenging the administrative ruling.
Hood v.
Encinitas Union Sch. Dist., 486 F.3d 1099, 1103 (9th Cir. 2007)
(citations omitted).
The challenging party must show, by a
preponderance of the evidence, that the hearing decision should
be reversed.
J.W., 626 F.3d at 438 (citations omitted).
DISCUSSION
I.
Unavailable Decisions
At the outset, the Court notes that Plaintiffs cited
numerous administrative hearings decisions and an unpublished
decision from the Eastern District of Pennsylvania in their
Opening Brief and Reply Brief.
Plaintiffs, however, have not
attached copies of these decisions, and these decisions do not
appear to be available through Westlaw.
At the oral argument,
this Court informed Plaintiffs’ counsel that the Court would not
consider these decisions unless Plaintiffs provided the Court
with either a copy of each decision or a Westlaw citation for
each decision.
[Minutes, filed 5/16/11 (dkt. no. 28).]
On May 19, 2011, Plaintiffs filed their Corrected
Submission of Plaintiffs’ Citation of Westlaw Cases (“Citation
Submission”).
[Dkt. no. 30.]
Plaintiffs’ Citation Submission
provided Westlaw citations and copies of seven court decisions
cited in their briefs.
Plaintiffs, however, did not provide
Westlaw citations or copies of the administrative hearing
decisions that they cited, nor did they provide a Westlaw
citation or a copy of Marcia Lyons & Heloise Baker v. Lower
Merion Sch. (2:09-cv-05576 E.D. Pa. (Dec. 2010)).
at 17.]
[Opening Br.
This Court previously warned Plaintiffs that it would
not consider these decisions unless they provided a copy of the
decision or a Westlaw citation, and the Court provided Plaintiffs
with the opportunity to supplement their briefs.
Plaintiffs,
however, failed to provide the necessary information.
The Court
therefore will not consider those decisions in ruling on
Plaintiffs’ appeal.
II.
The Hearings Officer’s Subject Matter Jurisdiction
The Hearings Officer ruled that he did not have subject
matter jurisdiction over Plaintiffs’ case because it essentially
sought to enforce the Settlement Agreement.
[Decision at 9-10.]
Plaintiffs argue that this was reversible error.
Plaintiffs and Defendants do not dispute that, as a
general rule, where the parties in an IDEA dispute voluntarily
enter into a settlement agreement, the agreement constitutes a
binding contract that is enforceable against the parties.
See,
e.g., D.R. by M.R. v. E. Brunswick Bd. of Educ., 109 F.3d 896,
901 (3d Cir. 1997).
In the instant case, this Court must
consider what actions a parent may take if the school system does
not abide by the terms of the settlement agreement.
First, the Court notes that, courts have recognized
that, pursuant to 20 U.S.C. § 1415(e)(2)(F) and §
1415(f)(1)(B)(iii), there is federal jurisdiction to enforce IDEA
settlement agreements reached during a resolution session or
during mediation.
See, e.g., Traverse Bay Area Intermediate Sch.
Dist. v. Mich. Dep’t of Educ., No. 5:06-CV-139, 2007 WL 2219352,
at *7 (W.D. Mich. July 27, 2007) (“[W]ritten settlement
agreements reached during the mediation process or in a
resolution session which comply with the [IDEA] requirements are
now enforceable in state and federal courts.” (citations
omitted)); Bowman v. Dist. of Columbia, Civil Action No. 05-01933
(HHK), 2006 WL 2221703, at *2 (D.D.C. Aug. 2, 2006) (recognizing
that a district court has jurisdiction to enforce a settlement
agreement reached either at the resolution meeting or during
mediation).
The Settlement Agreement in the instant case,
however, did not arise from either a resolution session or a
mediation.
Plaintiffs therefore would not be able to bring an
action alleging breach of the Settlement Agreement in federal
court, absent some other basis for federal jurisdiction.
See
L.M. v. Lower Merion Sch. Dist., Civil Action No. 10-4855, 2011
WL 71442, at *3 (E.D. Pa. Jan. 7, 2011) (noting that many courts
have held that, except for settlement agreements reached during
the mediation process or in a resolution session, IDEA settlement
agreements are not enforceable in United States District Courts
(citing H.C. v. Colton-Pierrepont Cent. Sch. Dist., No. 08-4221,
2009 WL 2144016, at *2 (2d Cir. July 20, 2009); T.D. v. LaGrange
Sch. Dist. No. 102, 349 F.3d 469, 479 (7th Cir. 2003); J.M.C. v.
La. Bd. of Elementary & Secondary Educ., 584 F. Supp. 2d 894, 897
(M.D. La. 2008); Traverse Bay Area Intermediate Sch. Dist. v.
Mich. Dep’t of Educ., No. 06-139, 2007 WL 2219352, at *6-7 (W.D.
Mich. July 27, 2007); Bowman v. District of Columbia, No.
05-01933, 2006 WL 2221703, at *2 (D.D.C. Aug. 2, 2006))).
Plaintiffs agree with the general rule that a hearings
officer does not have jurisdiction to rule upon a claim which
seeks solely to enforce a settlement agreement, [Reply Br. at 3,]
but they maintain that they never asked the Hearings Officer to
enforce the Settlement Agreement.
The Hearings Officer relied
upon H.C. ex rel. L.C. v. Colton-Pierrepont Central School
District, 341 Fed. Appx. 687, 690 (2d Cir. 2009), and A.R. v. New
York City Dep’t of Educ., 407 F.3d 65, 78 n.13 (2d Cir. 2005),
for the proposition that a hearings officer does not have the
authority to enforce a private settlement agreement.
at 9.]
[Decision
The court in H.C. noted:
In this case, plaintiff seeks to enforce only
those provisions of the May 19, 2006 settlement
agreement that required defendants to supply H.C.
with a table, chair, computer, software, and
certain computer accessories, within six weeks of
the date of the agreement. This enforcement
dispute is purely a matter of determining
defendant’s obligation under the settlement
agreement. It does not concern the
“identification, evaluation, or educational
placement of the child, or the provision of a free
appropriate public education to such child.” 20
U.S.C. § 1415(b)(6)(A). . . . Consequently, a due
process hearing before an IHO was not the proper
vehicle to enforce the settlement agreement. See
A.R. ex rel. R.V. v. New York City Dep’t of Educ.,
407 F.3d 65, 78 n.13 (2d Cir. 2005) (noting that,
“as is common in administrative procedures,” IHOs
“have no enforcement mechanism of their own”).
341 Fed. Appx. at 690 (emphasis added) (footnote and some
citations omitted).
Similarly, the Hearings Officer found that
Plaintiffs’ case did “not concern the identification, evaluation
or educational placement of the Student or the provision of a
free and appropriate public education.”
[Decision at 10.]
Plaintiffs’ 2009-2010 RIH did argue that Student’s IEP
team failed to convene a meeting after the Settlement Agreement
to incorporate its terms into Student’s IEP.
[ROA at 5.]
If the
2009-2010 RIH 1) argued that the Settlement Agreement called for
the DOE to provide certain services to Student, and 2) sought to
require his IEP team to incorporate those services into his IEPs,
that would merely have been a request to enforce the Settlement
Agreement, which the Hearings Officer would not have had subject
matter jurisdiction to hear.
Similarly, the 2009-2010 RIH sought
“make-up” tutoring in reading and math.
[ROA at 7.]
To the
extent that this was a request to compel the DOE to provide the
tutoring services that it agreed to provide in the Settlement
Agreement, it would also have been an improper request to enforce
the Settlement Agreement.
The 2009-2010 RIH, however, did not merely seek the
implementation of the services called for in the Settlement
Agreement.
The Settlement Agreement called for remedial tutoring
in math and reading during the remainder of SY 2009-2010, the
2010 ESY, and the first semester of SY 2010-2011.
Agreement at 1.]
[Settlement
Plaintiffs’ proposed resolutions in the
2009-2010 RIH also included remedial tutoring in math and
reading, [ROA at 7,] but the tutoring services they sought in the
RIH were far more extensive than those provided for in the
Settlement Agreement.
The Settlement Agreement called for one
hour of tutoring on school days, in a small group, and eight
hours per week of small group tutoring during ESY 2010.
The
tutoring sessions were to cover both math and reading.
[Settlement Agreement at 1.]
The 2009-2010 RIH, however, sought
one hour per school day of one-on-one math tutoring and one hour
per school day of one-on-one reading tutoring.
Even the
“make-up” tutoring that Plaintiffs sought in the RIH was on a
one-on-one basis.
[ROH at 7.]
Thus, the tutoring that
Plaintiffs sought in the 2009-2010 RIH went beyond the tutoring
called for in the Settlement Agreement, both in the number of
hours and the amount of individual attention Student would have.
In addition, the requested reading tutoring was to include
specific material to prepare Student “for his goal of becoming an
automotive mechanic[,]” and his reading program was to have
“measurable outcomes with the goal of bringing Justin up to grade
level reading comprehension, or reimbursement of costs for a
private remedial reading program to provide same.”
[Id.]
These
requests were not requirements under the terms of the Settlement
Agreement.
Further, Plaintiffs’ 2009-2010 RIH raised the issue
whether the March 3, 2009 IEP and the October 28, 2009 IEP
offered Student a FAPE.
[ROA at 5-6.]
Plaintiffs raised the
same arguments for both IEPs: Student’s reading, math, and
writing goals were inadequate and were not measurable; the
services and supports provided were inadequate; Student should be
eligible for ESY services; and the IEP failed to address Mother’s
concerns.
[ROA at 5.]
Thus, while Plaintiffs’ 2009-2010 RIH did
seek to enforce the Settlement Agreement through an order
compelling the DOE to convene an IEP team meeting and incorporate
the services in Settlement Agreement into the IEP, [id.,] that
was not all it sought.
The 2009-2010 RIH clearly raised the
issue whether the March 3, 2009 IEP and the October 28, 2009 IEP
denied Student a FAPE, and sought relief beyond mere enforcement
of the Settlement Agreement.
The 2009-2010 RIH also argued that the IEP team had not
reviewed Student’s reading and math goals since the
October 28, 2009 IEP and had not changed them since the
March 3, 2009 IEP.
[Id. at 5.]
This is not an attempt to
enforce the Settlement Agreement because, although the Settlement
Agreement addressed reading and math tutoring, it did not address
any specific goals for those subjects.
Defendants, however, also argue that Mother’s testimony
at the hearing, and the fact that Plaintiffs did not present any
expert testimony, show that what Plaintiffs were actually
litigating was the breach of the Settlement Agreement and what
remedies were available for that breach.
Defendants emphasize
Mother’s testimony that, if the DOE had honored everything in the
Settlement Agreement, the parties would not be in the due process
proceeding.
[ROA, 9/8/10 Trans., at 91.]
In addition, she
believed that the Settlement Agreement was still in effect.
at 112.]
[Id.
Mother, however, also testified that the terms of the
Settlement Agreement were not same as the requests in the
2009-2010 RIH.
[Id. at 93-94.]
There was also a significant
amount of testimony and evidence about the content and alleged
defects in the two contested IEPs.
For example, Peggy Murphy-
Hazzard, Psy.D., conducted neuropsychological evaluations of
Student in February and March 2009, and wrote a report dated
May 22, 2009.
[ROA, Pets.’ Exh. 21 at 1 (ROA pg. 129).]
Her
recommended academic accommodations included: time extensions for
all reading, writing, and math tasks and tests; remediation in
reading, writing, and math on a one-on-one basis; and allowing
Student to produce his work in alternate ways.
pg. 137).]
[Id. at 9 (ROA
At the administrative hearing, Mother testified that
the October 28, 2009 IEP was the first time the IEP team met
after Dr. Murphy-Hazzard’s evaluation.
Mother also testified
that the PWN for the October 28, 2009 IEP does not mention any
discussion about whether Dr. Murphy-Hazzard’s recommendations
were adopted, rejected, or even discussed at all.
Trans., at 73-74.]
[ROA, 9/8/10
Plaintiffs’ counsel questioned Mother about
the services she believed were lacking at the time the team
formulated the October 28, 2009 IEP.
Mother responded that
Student “could have benefited (sic) from a one on one or a
paraprofessional in the classroom with him.
tutoring[.]”
[Id. at 76.]
And even . . .
Mother also complained that Student’s
annual goals in December 2009 were identical to his annual goals
from November 2008, but Student had not mastered any of these
goals.
The goals did not have meaning to her.
They seemed to
refer to a test, but she had not seen results of such tests to
measure whether Student was making progress towards his goals.
[Id. at 83-85.]
As of the date of the hearing, none of Student’s
IEPs contained a transition plan discussing his intent to attend
Honolulu Community College.
[Id. at 86-90.]
Plaintiffs’ Hearing Opening Brief placed more emphasis
on the Settlement Agreement.
They argued that Student’s need for
intensive tutoring in reading and math was critical “because none
of the 2009-2010 school year nor 2010 summer remedial tutoring
[that the DOE agreed in the Settlement Agreement to provide] were
ever provided[.]”
[Pltfs.’ Hrg. Opening Br. at 4.]
Plaintiffs’
Hearing Opening Brief requested, inter alia, “[f]or DOE to agree
to honor their prior agreements contained in the settlement
agreement . . . and incorporate its terms into Justin’s IEP
plan[.]”
[Id. at 5.]
Thus, Plaintiffs’ Hearing Opening Brief
and portions of the 2009-2010 RIH indicate that Plaintiffs sought
to enforce the Settlement Agreement in the 2009-2010 RIH.
When viewed as a whole, however, the 2009-2010 RIH and
the administrative record establish that enforcing the Settlement
Agreement was not the only objective of Plaintiffs’ 2009-2010
RIH.
The 2009-2010 RIH also challenged whether the Student’s
March 3, 2009 IEP and October 28, 2009 IEP provided a FAPE and it
challenged the IEP team’s failure to review Student’s reading and
math goals for over a year.
These are proper subjects of an
impartial due process hearing.
8-60-65(a).
Haw. Admin. R. §§ 8-60-61(a)(1),
The Hearings Officer erred in finding that the case
did “not concern the identification, evaluation or educational
placement of the Student or the provision of a free and
appropriate public education.”
[Decision at 10.]
The Court
therefore FINDS that, although the Hearings Officer did not have
subject matter jurisdiction over the portion of the 2009-2010 RIH
seeking enforcement of the Settlement Agreement, the Hearings
Officer did have subject matter jurisdiction over the portions of
the 2009-2010 RIH challenging the March 3, 2009 IEP and the
October 28, 2009 IEP and challenging the failure to review
Student’s reading and math goals.
The Court CONCLUDES that the
Hearings Officer erred in dismissing the Plaintiffs’ case in its
entirety for lack of subject matter jurisdiction.
The Court also notes that, although the Hearings
Officer did not have jurisdiction to enforce the Settlement
Agreement, the Hearings Officer could have considered the terms
of the Settlement Agreement in relation to other issues, such as
determining whether Student received a FAPE.
See, e.g., Stanley
C. v. M.S.D. of Sw. Allen Cnty. Sch., 628 F. Supp. 2d 902, 977
(N.D. Ind. 2008) (ruling that, even if the failure to include
measurable goals was a breach of the parties’ settlement
agreement, the breach did not constitute a denial of a FAPE);
Sabatini v. Corning-Painted Post Area Sch. Dist., 190 F. Supp. 2d
509, 518 (W.D.N.Y. 2001) (order on motion for attorneys’ fees
where, in the underlying decision, the impartial hearing officer
relied upon the parties’ settlement agreement in concluding that
the school district did not prove it provided the student with a
FAPE); Reid ex rel. Reid v. Sch. Dist. of Philadelphia, No. Civ.
A. 03-1742, 2004 WL 1926324, at *3-4 (E.D. Pa. Aug. 27, 2004)
(holding that the breaches of the settlement agreement in that
case constituted a denial of a FAPE).
The Settlement Agreement, however, may have had limited
relevance to the issue whether the March 3, 2009 IEP and the
October 28, 2009 IEP provided a FAPE.
First, the Settlement
Agreement expressly states that it “does not constitute any
admission of wrongdoing on the part of either party.”
[Settlement Agreement at 1.]
Thus, the Settlement Agreement does
not constitute an admission by the DOE either that it denied
Student a FAPE or that the services called for in the Settlement
Agreement are what is necessary to provide Student with a FAPE.
More importantly, however, the parties did not execute the
Settlement Agreement until January 12, 2010, after Student’s IEP
team formulated both of the challenged IEPs.
The Settlement
Agreement, and any alleged breach thereof, are therefore not
controlling as to whether or not Student was provided with a FAPE
in the March 3, 2009 IEP and the October 28, 2009 IEP.
Defining
this matter as an enforcement of the Settlement Agreement is akin
to arguing that an umpire should have cancelled a baseball game
due to rain because of a thunderstorm that occurred the day after
the game was played.
This district court has recognized that:
IEPs must be judged “at the time the plans were
drafted.” Adams v. State of Oregon, 195 F.3d
1141, 1149 (9th Cir. 1999). The Adams court went
on to quote a Third Circuit case, which stated:
Actions of the school systems cannot . . . be
judged exclusively in hindsight. . . . [A]n
individualized education program (“IEP”) is a
snapshot, not a retrospective. In striving
for “appropriateness,” an IEP must take into
account what was, and was not, objectively
reasonable when the snapshot was taken, that
is, at the time the IEP was drafted.
Id. (quoting Fuhrmann v. East Hanover Bd. of
Educ., 993 F.2d 1031, 1041 (3d Cir. 1993))
(citations omitted). As such, IEPs are examined
“prospectively, rather than retrospectively.”
B.V. v. Dep’t of Educ., State of Hawaii, 451 F.
Supp. 2d 1113, 1126 (D. Haw. 2005).
Marcus I. ex rel. Karen I. v. Hawaii, Dep’t of Educ., Civ. No.
08-00491 DAE/BMK, 2009 WL 3378589, *9-10 (D. Hawai`i Oct. 21,
2009) (alterations in Marcus I.) (emphasis added).
Thus, in the
present case, the Hearings Officer could have considered the
Settlement Agreement, but only to the extent that he found it
relevant to the issues properly before him, such as whether the
challenged IEPs provided a FAPE at the time that they were
drafted.8
III. Remand to the Hearings Officer
Plaintiffs argue that a remand to the DCCA is not
appropriate and that the Court should rule on the merits of the
8
Plaintiffs’ emphasis on the Settlement Agreement and the
DOE’s alleged breach may well have caused some confusion as to
what issues were before the Hearings Officer.
case based on the Court’s examination of the administrative
record.
Plaintiffs note that, since issuing the Decision, the
Hearings Officer has left the DCCA and, if there is a remand, the
case would have to be reassigned.
They argue that time is of the
essence because Student is about to graduate.
[Opening Br. at
26.]
This Court has the discretion to award compensatory
education as an equitable remedy in cases where the student did
not receive a FAPE.
See B.T. ex rel. Mary T. v. Dep’t of Educ.,
676 F. Supp. 2d 982, 989-90 (D. Hawai`i 2009) (citing Parents of
Student W. v. Puyallup School Dist., No. 3, 31 F.3d 1489, 1497
(9th Cir. 1994); Forest Grove Sch. Dist. v. T.A., 523 F.3d 1078,
1084-85 (9th Cir. 2008)).
The Court must consider whether to
award compensatory education “on a fact-specific basis[,]” and
the Court must design such an award “to ensure that student is
appropriately educated within the meaning of the IDEA.”
Id.
(citations and internal quotation marks omitted).
In the present case, the Court cannot award
compensatory education because the record is not fully developed
as to the issues whether the contested IEPs denied Student a FAPE
and the issue regarding the failure to review Student’s math and
reading goals.
Further, even assuming arguendo that this Court
could find a denial of FAPE, this Court would not be able to
determine what services Student requires at this point.
The IEP
team formulated the contested IEPs and last reviewed Student’s
reading goals in 2009, and the administrative hearing occurred in
September 2010.
It is now June 2011, and the existing record may
not be an accurate reflection of what is currently necessary to
ensure that Student receives an appropriate education under the
IDEA.
Cf. id. at 990 (“It is now December of 2009, and the
particular services that B.T. requires at this point may not be
what has been identified in the November 2007 IEP.”).
The Court therefore REMANDS the instant case to the
DCCA to reassign the case to another hearings officer to consider
Plaintiffs’ claims that the March 3, 2009 IEP and the
October 28, 2009 IEP did not provide a FAPE and Plaintiffs’ claim
concerning the failure to review Student’s math and reading
goals.
CONCLUSION
On the basis of the foregoing, the Hearings Officer’s
Findings of Fact, Conclusions of Law and Decision, filed October
11, 2010, is HEREBY AFFIRMED IN PART AND REVERSED IN PART.
The
Court AFFIRMS the Decision to the extent that it dismissed the
portion of Plaintiffs’ 2009-2010 Request for Impartial Hearing
seeking to enforce the Settlement Agreement.
The Court REVERSES
the Decision to the extent that it dismissed: 1) the portion of
Plaintiffs’ 2009-2010 Request for Impartial Hearing alleging that
Student’s March 3, 2009 IEP and October 28, 2009 IEP did not
provide a FAPE; and 2) the portion of the RIH challenging the
failure to review Student’s math and reading goals.
The Court
REMANDS this case to the DCCA to reassign the case to another
hearings officer to rule upon those issues, and REQUESTS that the
DCCA expedite this matter to the fullest extent possible because
Student has either graduated or will graduate at the end of the
2010-2011 extended school year.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, June 17, 2011.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
JUSTIN R., ET AL. V. KATHRYN MATAYOSHI, ET AL.; CIVIL NO. 1000657 LEK-RLP; ORDER AFFIRMING IN PART AND REVERSING IN PART IN
THE HEARINGS OFFICER’S OCTOBER 11, 2010 DECISION
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