Department of Education, State of Hawai'i v. C.
Filing
27
ORDER AFFIRMING IN PART, REVERSING IN PART, AND MODIFYING THE HEARINGS OFFICER'S JULY 23, 2012 DECISION. Signed by JUDGE LESLIE E. KOBAYASHI on 3/28/2013. ~ Order follows March 4, 2013 hearing on the Administrative Record. Minute s: 26 ~ (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
DEPARTMENT OF EDUCATION,
STATE OF HAWAII,
)
)
)
Plaintiffs,
)
)
vs.
)
)
S.C., by and through his
)
Father, DOUG C.,
)
)
Defendants.
)
_____________________________ )
CIVIL NO. 12-00475 LEK-BMK
ORDER AFFIRMING IN PART, REVERSING IN PART, AND
MODIFYING THE HEARINGS OFFICER’S JULY 23, 2012 DECISION
Before the Court is Plaintiff Department of Education,
State of Hawaii’s (“DOE” or “Plaintiff”) appeal from the
Administrative Hearings Officer’s (“Hearings Officer”) July 23,
2012 Findings of Fact, Conclusions of Law and Decision
(“Decision”1), pursuant to the Individuals with Disabilities
Education Act of 2004 (“IDEA”), 20 U.S.C. § 1400 et seq.
filed its opening brief on January 7, 2013.
The DOE
Defendants S.C.
(“Student”) by and through his father, Doug C. (“Parent”), filed
their answering brief on February 7, 2013.
reply brief on February 14, 2013.
hearing on March 4, 2013.
1
The DOE filed its
This appeal came on for
Appearing on behalf of Plaintiff was
The Decision is Exhibit 12 to the Administrative Record on
Appeal (“ROA”), at 87-105; the Hearings Officer’s Order Denying
Respondent’s Motion for Reconsideration of the Decision is
Exhibit 16 to the ROA, at 139-143.
Michelle Puu, Esq., and appearing on behalf of Defendants was
Keith Peck, Esq.
After careful consideration of the supporting
and opposing memoranda, and the arguments of counsel, the
July 23, 2012 Decision is HEREBY AFFIRMED IN PART AND REVERSED IN
PART.
The Decision is AFFIRMED with respect to the finding of a
denial of a Free Appropriate Education (“FAPE”), and REVERSED
with respect to the award of full reimbursement for Student’s
private placement from the period from November 4, 2011 to
November 4, 2012.
I.
Factual and Administrative Background
Student is eighteen years old and a student at Horizons
Academy (“Horizons”), a private school on Maui.
Student is
eligible for special education and related services under the
IDEA in the category of autism.
High School (“MHS”).
Student’s home school is Maui
At the time in question, Student was
reading at a 3rd to 6th grade level, but could do some high
school level math, and attended a pre-algebra class at Maui
Community College (“MCC”) in the fall of 2011.
[Decision at 3-
5.]
The DOE developed Student’s November 4, 2011
Individualized Education Program (“IEP”) at meetings on
October 28, 2011 and November 4, 2011.
The IEP offered Student
placement as follows:
(Student) will not participate with non-disabled
peers or receive his education with the general
2
education population. (Student) will participate
with his non-disabled peers in activities of his
own choosing including morning recess, lunch,
lunch recess, school assemblies, and other
extra-curricular activities of his own choosing
and interest.
[Id. at 5.]
Under the IEP, Student would receive educational and
related services at Maui High School’s Workplace Readiness
Program, in a self-contained classroom.
The Workplace Readiness
Program is:
for juniors, seniors, and continuing education
students (ages 18-20) who are on a certificate of
completion (not a diploma) track. The Workplace
Readiness Program attempts to get students as life
ready as possible, working on daily living and
employment skills such as laundering, personal
hygiene, budgeting, self-advocacy, and safety
skills.
[Id. at 3.]
At the IEP meetings, Parent told the IEP team that
he wanted Student to remain at Horizons, but did not voice any
specific concerns with the content of the IEP.
Parent did not
ask that Student be placed in a general education setting at the
IEP meetings.
[Id. at 4-7.]
On January 9, 2012, Defendants filed their Request for
Impartial Hearing (“RIH”) with the DOE.
[ROA at 4-7.]
The RIH
asserts that the November 4, 2011 IEP denied Student a FAPE
because:
•
The designation of Student’s placement is not
the least restrictive environment (“LRE”) for
Student;
•
The designation of Student’s placement was
not individualized for Student; and
3
•
The designation of Student’s placement is
insufficient to determine its meaning.
[Id. at 8.]
The Hearings Officer convened the due process hearing
on June 13, 2012, and the parties filed written closing
arguments.
[Id. at 1.]
The Hearings Officer framed the issues as whether
Student was placed in the least restrictive environment; whether
his placement was individualized and sufficiently defined; and
the appropriateness of Plaintiff’s placement at Horizons.
With
respect to LRE, the Hearings Officer found that the DOE did not
consider placing Student in a general education class for math or
whether Student’s goals and objections could be implemented
partly in general education classes.
[Id. at 10-11.]
The Hearings Officer concluded that, with supports,
“Student would obtain educational benefits from a math regular
education classroom.
Further, Student has socialization needs.
The non-academic benefits of interaction with non-disable peers
in a regular education classroom would be to provide Student with
role models and socialization opportunities with general
education peers.”
[Id. at 11.]
The Hearings Officer concluded
that the DOE failed to place Student in the least restrictive
environment.
[Id. at 12.]
4
The Hearings Officer also concluded that the IEP’s
placement was not individualized to his needs.
He decided that
the term “to participate with his non-disabled peers in
activities of his choosing” was insufficient to describe the
socialization opportunities with non-disabled peers that Student
would have.
[Id. at 15.]
He also held that Horizons was an
appropriate placement for Student, and based on the DOE’s denial
of FAPE, awarded Defendants the cost of reimbursement for
education and related services for November 4, 2011 through
November 4, 2012.
August 22, 2012.
[Id. at 16.]
The DOE appealed the Decision on
The DOE also filed a Motion for Reconsideration
on July 31, 2012, which the Hearings Officer denied on
September 6, 2012.
II.
Plaintiff’s Opening Brief
The DOE urges the Court to reverse the Hearings
Officer’s Decision that it denied Student a FAPE on the grounds
that it lacks evidentiary support and contradicts the same
Hearings Officer’s previous decision involving the same parties.
It characterizes Parent’s participation during the IEP process as
“withholding his complaints with the [offer of FAPE] until he
testifies in the Administrative Hearing.
This tactic thwarts the
DOE’s ability to address Parent’s concerns short of a Due Process
Hearing.”
[Opening Br. at 2.]
5
According to the DOE, this same Hearings Officer found
for the DOE with respect to Student’s November 2010 IEP in a
June 14, 2011 decision, which contained the exact same placement
language that the Hearings Officer found problematic in the
instant case.
That previous June 14, 2011 decision was affirmed
on appeal to this district court.
The DOE states that the
earlier decision terminated Student’s Stay Put status at Horizons
on December 12, 2011, and that Student’s continued placement
thereafter was unilaterally determined by Parent.
[Id. at 4, 6
n.1 (citing ROA Exh. 13 (10/10 IEP), and Exh. 16 (6/14/11
Decision); Doug C. v. Dep’t of Educ., Civil No. 11-00441 KSC (D.
Hawai`i 2012)).]
Here, the DOE argues that the Hearings Officer erred
when he made the following factual findings and conclusions
because: (1) Student’s IEP team was not perplexed as to whether
Student belonged on a Diploma or Certificate track; and
(2) Student demonstrated a clear ability to make choices as to
which activities Student would participate in with non-disabled
peers.
It also argues that Student’s IEP placement language was
legally sufficient and appropriately individualized for Student’s
unique needs and that placement in the Workplace Readiness
Program at MHS constituted placement in Student’s least
restrictive environment.
6
Finally, the DOE argues that, assuming there was a
denial of FAPE, reimbursement should be denied under the IDEA’s
exceptions to reimbursement, pursuant to 20 U.S.C.
§ 1412(a)(10)(C)(iii), 34 C.F.R. § 300.148.
[Id. at 33-35.]
III. Defendants’ Answering Brief
Defendants note in their Answering Brief that the prior
June 14, 2011 decision did not address LRE; rather, the issue in
that case was whether holding the IEP meeting without Parent
present violated the IDEA.
They state that they have appealed
the district court’s order affirming that decision.
Br. at 3.]
[Answering
Defendants argue that the Hearings Officer supported
his conclusions with appropriate findings of fact, including
evidence going to Student’s need for socialization and ability to
integrate in a general education elective class.
They assert
that leaving the choice up to Student of when and whether to
participate in activities with non-disabled peers was never
addressed at the IEP meeting.
[Id. at 8-10.]
With respect to Parent’s desire to maintain Student’s
placement at Horizons, Defendants argue that Parent “sought to
end the litigation between the parties and to honestly state his
own discomfort with the posturing that had encompassed the IEP
process. . . .
[I]t is no wonder that [Parent] sought to speak
to the reality of the situation by requesting the team to
consider placing his son at Horizons Academy.”
7
[Id. at 14-15.]
IV.
Plaintiff’s Reply Brief
In its reply, the DOE emphasizes that, even if a
procedural violation is found, the IEP was reasonably calculated
to confer educational benefits.
It notes that, at the time of
the IEP’s development, Student had been attending MCC for several
weeks with the assistance of two adults.
It argues that Student
was not obtaining any functional math skills in the community
college class, and that Student would have no practical use for
algebra.
Rather, Student had basic math needs, such as:
navigation of Student’s environment with time constraints in
mind, the balancing of a checkbook, and learning how to develop a
budget.
The DOE argues that placement in the MHS Workplace
Readiness Program was appropriate for Student’s needs based on
the evidence before the Hearings Officer.
[Reply at 2-4.]
With respect to the previous year’s IEP, the DOE notes
that the Hearings Officer previously decided that the DOE’s
placement was appropriate and that Defendants did not challenge
that finding on appeal.
It argues that it had no reason to
believe that its placement language was improper because it “bore
the specific endorsement of the administrative hearings officer
and essentially assenting silence from Parent.”
[Id. at 5.]
DOE contends that Parent failed to raise either of the issues
complained of now until he testified at the administrative
8
The
hearing because he never requested that the team consider
placement of Student in a general education classroom, and never
questioned the placement language that permitted Student to
choose the activities that he would participate in with nondisabled peers.
[Id. at 6.]
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[.]”
20 U.S.C.
§ 1400(d)(1)(A).
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,
9
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.
20
U.S.C. § 1414(d)(1)(B).
“Procedural flaws in the IEP process do not always
amount to the denial of a FAPE.”
L.M. v. Capistrano Unified Sch.
Dist., 556 F.3d 900, 909 (9th Cir. 2009) (citations omitted).
Once a procedural violation of the IDEA is identified, the court
“must determine whether that violation affected the substantive
rights of the parent or child.”
Id. (citations omitted).
“[P]rocedural inadequacies that result in the loss of educational
opportunity, or seriously infringe the parents’ opportunity to
participate in the IEP formulation process, clearly result in the
denial of a FAPE.”
Id. (alteration in original) (citations and
quotation marks omitted).
Compliance with the IDEA does not require school
districts to provide the “absolutely best” or “potential-
10
maximizing” education.
J.W. v. Fresno Unified Sch. Dist., 626
F.3d 431, 439 (9th Cir. 2010) (citation and internal quotation
marks omitted).
Rather, school districts are required to provide
only a “‘basic floor of opportunity.’”
Id. (quoting Bd. of Educ.
of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 201
(1982)).
The FAPE need only be “appropriately designed and
implemented so as to convey [the] [s]tudent with a meaningful
benefit.”
Id. at 433 (citations and quotation marks omitted).
If a parent disagrees with the contents of an IEP, the
parent may challenge the contents thereof by demanding an
administrative due process hearing to be conducted by the local
or state educational agency.
(f)(1)(A).
See 20 U.S.C. § 1415(b)(6),
Parents may also send their student to a private
program and seek retroactive tuition reimbursement from the
state.
See Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484,
2493, 2496 (2009) (citations omitted).
Where parents
unilaterally withdraw a child from public school, they “do so at
their own financial risk.”
quotation marks omitted).
Id. at 2496 (citations and internal
Parents challenging an IEP are
entitled to reimbursement only if “a federal court concludes both
that the public placement violated IDEA and the private school
placement was proper under the Act.”
Id. (citations and internal
quotation marks omitted); see also 34 C.F.R. § 300.148(c).
11
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)
(quoting Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v.
Rowley, 458 U.S. 176, 206, 102 S. Ct. 3034, 73 L. Ed. 2d 690
(1982)) (some 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 careful.’”
L.M. v. Capistrano, 556 F.3d at 908
(quoting Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d
12
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).
Such deference is appropriate
because “if the district court tried the case anew, the work of
the hearing officer would not receive ‘due weight,’ and would be
largely wasted.”
Wartenberg, 59 F.3d at 891.
“[T]he ultimate
determination of whether an IEP was appropriate,” however, “is
reviewed de novo.”
A.M. ex rel. Marshall v. Monrovia Unified
Sch. Dist., 627 F.3d 773, 778 (9th Cir. 2010) (citing Wartenberg,
59 F.3d at 891).
A court’s inquiry in reviewing IDEA administrative
decisions 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?” [Rowley, 458 U.S. at 206-07]
(footnotes omitted). “If these requirements are
met, the State has complied with the obligations
imposed by Congress and the courts can require no
more.” Id. at 207.
J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 947 (9th Cir.
2010) (some citations omitted).
13
The burden of proof in IDEA appeal proceedings 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 (citation omitted).
DISCUSSION
I.
Denial of FAPE
The Court first notes that the Decision is thorough,
careful, and well-reasoned.
The findings are supported by
appropriate evidence, and the conclusions demonstrate
consideration of all the evidence and the Hearings Officer’s
sensitivity to the complexity of the issues presented.
Where a
decision contains some findings that are “thorough and careful,”
and others that are not, the court can give deference to the
thorough and careful findings and yet review other findings
independently.
See R.B., ex rel. F.B. v. Napa Valley Unified
School Dist., 496 F.3d 932, 943 (9th Cir. 2007) (“[W]e accord
particular deference to the [hearings officer’s] ‘thorough and
careful’ findings . . . although we independently review the
testimony in the record that [he] failed to consider.”).
Accordingly, the Court gives “substantial weight” to the Hearings
Officer’s Decision.
See Cnty. of San Diego,, 93 F.3d at 1466-67.
14
The DOE argues that the Hearings Officer erred when he
concluded that the November 14, 2011 IEP denied Student a FAPE.
The Decision, however, recites the appropriate legal standards
and applies them reasonably to the facts of this case.
First,
the Court notes that the DOE relies on the same Hearings
Officer’s prior determination of the appropriateness of the
offered placement.
The Court agrees that the previous
determination is a reasonable starting point for the DOE’s
development of the IEP at issue in this case, but that it is not
dispositive.
From year to year, a student’s educational needs
likely shift and require reevaluation.
Moreover, the DOE does
not argue that the prior decision has any legally preclusive
effect here.
Based on the totality of the circumstances and the
nature of the IEP process, the Court does not find that the
Hearings Officer’s Decision should be reversed based on the
earlier decision.
Next, the Court addresses the conclusion that the IEP
failed to consider the LRE.
The DOE does not dispute that under
the LRE provisions, it must ensure that, to the extent possible,
students with disabilities be educated with students who are nondisabled.
Specifically, the IDEA provides:
To the maximum extent appropriate,
children with disabilities, including
children in public or private
institutions or other care facilities,
are educated with children who are not
disabled, and special classes, separate
15
schooling, or other removal of children
with disabilities from the regular
educational environment occurs only when
the nature or severity of the disability
of a child is such that education in
regular classes with the use of
supplementary aids and services cannot
be achieved satisfactorily.
20 U.S.C. § 1412(a)(5)(A). . . . “[E]ven in cases
in which mainstreaming is not a feasible
alternative, [however] the statutory preference
for a least restrictive placement applies.”
Walczak v. Fla. Union Free Sch. Dist., 142 F.3d
119, 132 (2d Cir. 1998) (internal quotations
omitted).
Aaron P. v. Haw., Dep’t of Educ., --- F. Supp. 2d ----, 2012 WL
4321715, at *15 (D. Hawai‘i Sept. 17, 2012); see also Haw. Admin.
R. §§ 8-60-15, 8-60-18.
A court may evaluate and balance the
following factors to determine whether mainstreaming is
appropriate: “(1) the educational benefits of full-time placement
in the regular classroom; (2) the non-academic benefits of such
placement; (3) the effect the disabled child has on the teacher
and children in the regular class; and (4) the costs of
mainstreaming the child.”
Sacramento City Unified Sch. Dist. v.
Rachel H., 14 F.3d 1398, 1404 (9th Cir. 1994).
The Court observes that there is some dispute whether
Student gained sufficient educational benefit from attending math
classes at MCC, as compared to the math skills he could develop
in the MHS Work Readiness Program.
The Court, however, commends
the DOE personnel’s concerns with Student’s ability to navigate
in the larger world upon completion of school.
16
There is also
room for dispute regarding the best way to address Student’s
socialization needs, and whether he would choose to interact with
non-disabled peers in a general education setting.
In any event,
the Hearings Officer found that the DOE “did not even consider
placing Student in a general education class for math[,]” or
“whether Student’s goals and objectives could be implemented
partly in a special education and partly in regular education
classes.”
[Decision at 11.]
Tellingly, the DOE argues that the
lack of discussion of a general education placement constitutes
at most a procedural violation which falls short of a denial of
FAPE.
The Court agrees with the Hearings Officer that this
constitutes a procedural violation under IDEA, and finds that the
DOE has not met its burden on appeal of establishing that it
offered Student a FAPE.
As noted, there is room for dispute
regarding the benefits of placing Student in the Workplace
Readiness Program, but Student also demonstrated socialization
needs.
On balance, the Court cannot say that the Hearings
Officer erred in concluding that the DOE failed to place Student
in the least restrictive environment.
The DOE also argues that the IEP placement language was
legally sufficient and appropriately individualized for Student’s
unique needs, contrary to the Hearings Officer’s conclusion.
The
IEP states that Student “will participate with his non-disabled
peers in activities of his own choosing including morning recess,
17
lunch, lunch recess, school assemblies, and other
extra-curricular activities of his own choosing and interest.”
[Id. at 12.]
The Hearings Officer credited Parent’s testimony
that “Student would not choose lunch with his regular education
peers[,]” and that “due to his disability, Student would not
choose to interact.”
[Id.]
The Hearings Officer then concluded
that the placement language “‘to participate with his nondisabled
peers in activities of his own choosing’ leaves it up to Student
to determine his level of socialization with non-disabled peers.
This is not a specific enough offer to address Student’s
socialization needs.”
[Id. at 13.]
The Court affords the
Hearings Officer appropriate deference in this finding.
He
identified the Student’s unique needs, including the need for
socialization, and concluded that the IEP did not sufficiently
address this need in light of evidence that the Student would
likely choose not to interact with others at morning recess,
lunch, lunch recess, school assemblies, and other
extra-curricular activities.
The Hearings Officer’s conclusion
is reasonable and consistent with the evidence that portions of
the placement designation were not sufficiently individualized.
In sum, the Court HEREBY AFFIRMS the Decision with
respect to its conclusions that, “through the November 4, 2011
IEP, the DOE failed to place Student in the LRE.
Further,
Petitioners have shown the designation of Student’s placement in
18
the November 4, 2011 IEP was insufficient to determine its
meaning and was not individualized for Student.”
II.
[Id. at 16.]
Award of Reimbursement for Private Placement
The DOE alternatively argues that, assuming there was a
denial of FAPE, reimbursement should be denied pursuant to 20
U.S.C. § 1412(a)(10)(C)(iii), and 34 C.F.R. § 300.148.
Reimbursement is an equitable remedy and is not awarded
automatically in cases where FAPE has not been offered.
“The
cost of reimbursement . . . may be reduced or denied . . . upon a
judicial finding of unreasonableness with respect to actions
taken by the parents.”
20 U.S.C. § 1412(a)(10)(C)(iii)(III).
The Ninth Circuit recently explained the factors courts should
consider when weighing reimbursement for private placement:
The IDEA permits a district court to “grant
such relief as the court determines is
appropriate.” 20 U.S.C. § 1415(i)(2)(C)(iii). We
have held that “[p]arents have an equitable right
to reimbursement for the cost of providing an
appropriate education when a school district has
failed to offer a child a FAPE.” W.G. [v. Bd. of
Trustees of Target Range School Dist. No. 23, 960
F.2d 1479,] 1485 [(9th Cir. 1992)]. Even if a
parent prevails on an IDEA claim, however,
reimbursement is not automatic and the Supreme
Court has repeatedly cautioned that “parents who
unilaterally change their child’s placement during
the pendency of review proceedings, without the
consent of state or local school officials, do so
at their own financial risk.” Sch. Comm. of
Burlington v. Dep’t of Educ. of Mass., 471 U.S.
359, 373–74, 105 S. Ct. 1996, 85 L. Ed. 2d 385
(1985). The Court has further explained that
reimbursement for such expenses is appropriate
only if (1) the school district’s placement
violated the IDEA, and (2) the alternative
19
placement was proper under the statute. Florence
Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 15,
114 S. Ct. 361, 126 L. Ed. 2d 284 (1993). “If
both criteria are satisfied, the district court
then must exercise its ‘broad discretion’ and
weigh ‘equitable considerations’ to determine
whether and how much, reimbursement is
appropriate.” C.B. [ex rel. Baquerizo v. Garden
Grove Unified Sch. Dist., 635 F.3d 1155,] 1159
[(9th Cir. 2011)]. In making this determination,
the district court may consider all relevant
equitable factors, including, inter alia, notice
to the school district before initiating the
alternative placement; the existence of other,
more suitable placements; the parents’ efforts in
securing the alternative placement; and the level
of cooperation by the school district. Forest
Grove Sch. Dist. v. T.A., 523 F.3d 1078, 1088–89
(9th Cir. 2008). These factors make clear that
“[t]he conduct of both parties must be reviewed to
determine whether relief is appropriate.” W.G.,
960 F.2d at 1486 (emphasis added).
Anchorage School Dist. v. M.P., 689 F.3d 1047, 1058-59 (9th Cir.
2012).
In the instant case, the Court upholds the Hearings
Officer’s finding that the DOE denied Student a FAPE, and the DOE
does not challenge the appropriateness of Student’s private
placement on appeal.
It appears that both of the Carter factors
are met.
Next, the Court considers equitable factors and
concludes that Parent’s conduct was unreasonable and tainted what
should be a collaborative IEP process.
The evidence demonstrates
that, during the IEP process, Parent failed to express relevant
concerns with the DOE’s IEP, but raised specific issues for the
first time during the administrative hearing below.
That is,
Parent never requested that Student be placed in a general rather
20
than special education setting.
Moreover, Parent never raised
his later concerns regarding which activities Student would
choose to participate in with non-disabled peers.
In fact, it
appears that Parent’s sole concern was that the DOE place Student
at Horizons.
He testified as follows at the due process hearing:
Q.
And did you raise this to the IEP team that
this was your preference that he be in a general
ed classroom environment?
A.
I told them that we wanted him to be at
Horizons.
. . . .
Q.
Let me ask it a different way . . . . Did
you ever tell the IEP team, I don’t like the idea
of a fully self-contained classroom. I prefer
[Student] to be in a general education type
classroom?
A.
Well, in a sense. I told them I’d rather he
stayed at Horizons.
Q.
Okay. So [your] answer to my question is no,
you didn’t tell them that?
A.
Well, I told them I wanted him to stay at
Horizons.
[ROA, Tr. Vol. I, at 87-88.]
The IEP team understood Parent’s
position as follows:
he was going to file for Stay Put, so he’s going
to be [at Horizons]. By the time everything got
settled, [Student] would have aged out and they
would have -- he would have gotten, for lack of -I mean, he would have gotten – [Student] would be
at Horizons all -- all during that time, then, so
rather than going through the formality of doing
an annual IEP, why don’t we just make the decision
to have him at Horizons regardless of whether, you
know, there were other possibilities.
[ROA, Tr. Vol. II, at 172.]
It appears that Parent predetermined his disapproval of
any placement other than Horizons, but did not raise any other
21
concerns with the DOE’s offered placement at all during the
development of the IEP.
As best the Court can tell, he sprung
his specific concerns on the DOE for the first time during the
due process hearing, at which point the IEP team could not
address those concerns.
In this Court’s view, such conduct was
unreasonable and contrary to the collaborative spirit of the
IDEA, and undermined the process.
“Such Boulwarism, whether or
not well-intentioned, constitutes an unreasonable approach to the
collaborative process envisioned by the IDEA.
attitude sufficed to undermine the process.”
Here, that
C.G. ex rel. A.S.
v. Five Town Community School Dist., 513 F.3d 279, 288 (1st Cir.
2008) (citation omitted); see also Schoenbach v. Dist. of
Columbia, 309 F. Supp. 2d 71, 89 (D.D.C. 2004) (“Such [parental]
silence, despite their genuine conviction that [student] needed
to be in private school, is inexplicable and unreasonable.
The
court concludes that the Initial IEP proposed an inappropriate
public school placement in significant part because of the
failure of [student’s] parents to object to the IEP when given
the opportunity to do so.
Therefore, plaintiffs are not entitled
to tuition reimbursement.”).
This Court has previously recognized that the system
functions best when parents and the school district cooperate in
the development of an IEP, and that both parties have obligations
under the IDEA.
See Rachel L. v. Hawaii, Dept. of Educ., Civil
22
No. 11–00756 LEK–BMK, 2012 WL 4472263, at *15 (D. Hawai‘i Sept.
25, 2012) (“The DOE has an obligation to schedule an annual IEP
review and, while parental participation is a critical component
of an IEP meeting, the DOE’s requirement to secure parental
participation has to be met with reasonable efforts.”); see also
Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 159 (1st Cir. 2004)
(“[R]eimbursement for private school tuition depended on the
parents cooperating with school authorities in determining the
proper placement and educational plan for the child.”)
Although the Court is upholding the finding that the
DOE failed to offer a FAPE, the Court observes that the DOE
appears to have made a good-faith effort to provide Student with
a timely, comprehensive IEP in light of Parent’s failure to
provide any feedback other than his insistence on placement at
Horizons.
The Court, in its discretion, will reduce by fifty
percent the Hearings Officer’s award based on the unreasonable
conduct.
The Court finds that this reduction balances the
finding that the DOE did not meet its obligations under the IDEA
with that Parent’s conduct that undermined the process by
withholding his objections to the proposed placement until the
due process hearing, rather than during the development of the
IEP.
This reduction recognizes that neither party fulfilled its
obligations under the IDEA.
The Court HEREBY REVERSES the
Decision to the extent it awarded Defendants full reimbursement
23
for the period in question.2
The Court HEREBY MODIFIES the award
as follows: Student is awarded one half of
the cost of reimbursement for educational and
related services for Student’s program and
placement at the current private school
[Horizons], including, but not limited to,
tuition, speech therapy, skills training,
behavioral consultation and oversight,
transportation, after-school programs, and other
instructional and related expenses associated with
Student’s private program. [Defendants] are
awarded this reimbursement for the period of time
that the November 4, 2011 IEP is in effect; that
is, from November 4, 2011 to November 4, 2012.
[Decision at 16.]
CONCLUSION
On the basis of the foregoing, the Hearings Officer’s
July 23, 2012 Findings of Fact, Conclusions of Law and Decision
is HEREBY AFFIRMED IN PART with respect to the finding of a
denial of FAPE.
The Decision is REVERSED IN PART with respect to
an award of full tuition reimbursement.
The Court MODIFIES the
award to one half of the award provided in the Decision, as set
forth above.
IT IS SO ORDERED.
2
The Court is mindful of DOE counsel’s representation at
the March 4, 2013 hearing that the DOE does not seek to have
money returned once it has been paid to providers.
24
DATED AT HONOLULU, HAWAII, March 28, 2013.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
DOE V. S.C., ETC.; CIVIL NO. 12-00475 LEK-BMK; ORDER AFFIRMING IN
PART, REVERSING IN PART, AND MODIFYING THE HEARING OFFICER’S
JULY 23, 2012 DECISION
25
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