Forest Grove School District v. Student
Filing
66
OPINION and ORDER - The court AFFIRMS in part and REVERSES in part the decision of ALJ Allen and concludes the following: (1) the District denied Parents' the opportunity to meaningfully participate in Student's education from December 6, 2011 to the end of academic year 2012 by continuing to rely on the faulty November 2011 IEP; and (2) the District denied Student a FAPE by failing to treat Student's anxiety and self-management from December 6, 2011 to the end of academic year 2012. The court rules in favor of the District on all remaining claims. An award of remedies is unwarranted and/or is moot. IT IS SO ORDERED.DATED this 27th day of NOVEMBER, 2018, by United States Magistrate Judge John V. Acosta. (peg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
FOREST GROVE SCHOOL DISTRICT,
Case No. 3:14-cv-00444-AC
Plaintiff,
OPINION AND ORDER
V.
STUDENT,
Defendant,
STUDENT,
Counter Claimant,
V.
FOREST GROVE SCHOOL DISTRICT,
Counter Defendant.
ACOSTA, Magistrate Judge:
Introduction
Plaintiff-Appellant-Counter Defendant Forest Grove School District ("the District") seeks
review of a December 18, 2013 Final Order by Administrative Law Judge Joe L. Allen ("the ALJ"
1 - OPINION AND ORDER
or "ALJ Allen") finding the District in violation of the Individuals with Disabilities in Education Act
("IDEA"), 20 U.S.C. § 1401 et seq. Defendant-Appellee-Counter Claimant Student ("Student")
cross-appeals, and asks the court to uphold the ALJ' s Final Order and seeks an award of attorney fees
and costs. For the reasons that follow, the court affirms in part and reverses in part the ALJ's Final
Order.
Procedural Background
This is the second due process hearing between the parties. On December 6, 2011, Parents,
on behalf of Student, filed a due process hearing request (DP 11-131) with the Oregon Department
of Education. That hearing involved Student's 2009-2010, 2010-2011, and portions of the 20112012 academic years. Administrative Law Judge Jill Messecar ("ALJ Messecar") issued a Final
Order in DP 11-131 on September 12, 2012. On October 12, 2012, the District appealed the Final
Order in DP 11-131 to this Court (Forest Grove School Districtv. Student, Case No. 3:12-cv-01837AC).
While the appeal of DP 11-131 was pending, Parents, 1 on behalf of Student, filed the present
due process hearing request (DP 13-104) on March 5, 2013, and an amended due process complaint
August 9, 2013. Beginning September 23, 2013, ALJ Allen held three days of hearings on DP 13104, and issued a Final Order on December 18, 2013.
On March 18, 2014, the District filed an appeal ofFinal Order DP 13-104 (Case No. 3:14-cv00444-AC, Compl., ECF No. 1-1, hereinafter "Final Order").
The due process complaint was filed in the name of both Parents. The Transcript
differentiates between mother and father as Parent 1 and Parent 2, however, only Parent 1 testified
at the hearing and Parent 1 has been identified as Educational Sunogate for Student. (Ex. S62.)
Thus, references in this Opinion and Order to Parent refer to Parent 1 where factually significant.
1
2 - OPINION AND ORDER
Simultaneously, Parents filed a separate Complaint and Petition for attorney fees, expenses, and costs
in pursuing DP 13-104 (Case No. 3:14-cv-00445-AC, Compl., ECF No. 1). Parents also requested
attorney fees and costs in this case. In an April 12, 2018 Opinion and Order, the court determined
that attorney fees are not relevant to resolution of the merits in this case, and that attorneys fees
would be resolved in Case No. 3:14-cv-00445 in due course. (Op. & Order 6, ECF No. 61.)
On June 9, 2014, the Court issued an Opinion and Order on DP 11-131, affirming in part and
reversing in part the findings and legal conclusions reached by ALJ Messecar. (Op. & Order, Case
No. 3:12-cv-01837, ECFNo. 41, available at, Forest Grove Sch. Dist. v. Student, 2014 WL2592654
(D. Or. June 9, 2014.)) On June 30, 2014, Student appealed DP 11-131 to the Ninth Circuit.
Meanwhile, the court entered a stay in this case (and Case No. 3: 14-cv-00445-AC) pending Student's
appeal of DP 11-131. On December 5, 2016, the Ninth Circuit affirmed this court's Opinion and
Order concerning DP 11-131. Forest Grove Sch. Dist. v. Student, 665 F. App'x 612 (9th Cir. 2016).
Factual Background of DP 13-104
In the current DP 13-104, Student complains of the District's actions beginning December
6, 2011. Because there is some overlap of issues and facts with DP 11-131, the court discusses
general background facts about Student as well as facts pertinent to DP 13-104 beginning in
November 2011.
The District convened an IEP team meeting on November 3, 2011. (Ex. S8.) 2 After the
meeting, Parents emailed the District copies of two reports; a report from Speech Language
Pathologist Robert Buckendorf dated August 2011, and a report from child psychiatrist Ken Ensroth,
Citations to Exhibits and Transcript are those contained in the conventionally filed
Administrative Record. (Admin. R., ECF No. 65.)
2
3 - OPINION AND ORDER
M.D., dated October 2011. (Ex. D2.) The IEP team met again on November 14, 2011 to finalize
revisions to Student's IEP. (Ex. Sl0.) The November 2011 IEP provided specially designed
instruction in transition reading, writing, and transition math, and that Student receive one hour per
week of speech and language therapy. Forest Grove, 2014 WL 2592654, at *7. The November 2011
IEP detailed certain supplementary aids, services, accommodations and modifications for Student,
including:
visual supports for classwork assignments and homework; modified tests and
assignments in all general education classes; and copies of notes following adult prompts. Student
also was to have essay questions modified on proficiency tests and test questions read aloud. Id.
The November 2011 IEP team placed Student in a combination of special and general education
classes with pull-out for tutorial services and speech and language services because it allowed
Student to develop social skills in general education classes while maintaining access to special
education instruction. Id.
Parent communicated frequently with Student's teachers, case manager, and other District
staff. At some point, the District determined Parent's communication became excessive. On
November 10, 2011, Kimberley Shearer, the District's Special Education Coordinator, sent an email
to Parent indicating that the District was having difficulty responding to Parent's multiple requests
and assessing which requests were necessary to the ongoing IEP process. (Ex. D27.) Ms. Shearer
put in place a "communication protocol" to ensure effective communication. Id. Ms. Shearer
requested that Parent summarize her concerns and consolidate them into a single, weekly email to
be directed solely to Kathryn Taplin, Student's then case manager. Id. Ms. Shearer indicated that
Ms. Taplin would open only the most recent email sent on Friday afternoons, and respond to Parent's
4 - OPINION AND ORDER
concerns that Friday. Id. At the hearing, Ms. Shearer testified that she had more communication
with Parent than any other Parent. (Tr. 287-88.)
On December 6, 2011, Parents filed a due process hearing request (DP 11-131) challenging
the November 2011 IEP. (Ex. S33.) On January 24, 2012, the District denied Parent's request for
an instructional assistant in all of Student's classes because having an instructional assistant in every
class was not in the November 2011 IEP. (Ex. S 11.) At that time, Student did have an instructional
assistant in a couple of her general education classes, including Biology and American Studies. (Ex.
Dl 7 at 3, Tr. 649, 1056-57.) On January 26, 2012, Parent emailed Forest Grove School District
Superintendent Yvonne Curtis inquiring about the District's refusal to discuss Student's math class
placement and discuss Student's upcoming semester schedule. (Ex. S12.)
On March 8, 2012, Parent emailed Ms. Taplin to request that notes from an instructional
assistant be given to Student to take home to study, instead of being kept in a folder in Student's
tutorial class. (Ex. S 18.) Parent also indicated a preference that Student receive notes before class
to follow along while being instructed. (Ex. Sl8.) At the hearing, Parent testified that Student's
receipt of notes improved, but that Student was not receiving them 100 percent of the time. (Tr. 89192.) Parent also testified that Student was not having her test questions read aloud, that the
instructional assistant was not available to provide that service, and that the teacher refused to read
Student the test questions aloud. (Tr. 975-76.)
Beginning April 16, 2012, ALJ Messecar convened a due process hearing on DP 11-131,
which continued over the course of 12 days, concluding on June 29, 2012. On May 16, 2012, Parent
emailed Ms. Taplin requesting information about Student's schedule for the following year, as well
as inquiring about which teachers and courses would be appropriate for achieving Student's writing
5 - OPINION AND ORDER
goals, Student's entitlement to literary instruction, and services. (Ex. S20.) In response to Parent's
request, Ms. Shearer, on behalf of the District, responded that they were in "stay put" as a result of
ongoing due process hearing, and that the District would not normally be holding an IEP. (Id) Ms.
Shearer also indicated that the IEP team did need to meet to discuss whether Student qualified for
Extended School Year ("ESY") services over the 2012 summer break. (Id) Parent forwarded Ms.
Shearer's response on May 17, 2012 to Ms. Taplin, requesting that the IEP team meeting discuss
2012 ESY services, Student's class scheduling, and transition services. (Id) Parent also requested
regression and recoupment data prior to the ESY IEP team meeting and Parent indicated a desire to
discuss reading, writing, speech and math. Id Parent refused to provide potential dates for the ESY
meeting until receipt of the regression and recoupment data. (Id)
On May 18, 2012, Ms. Shearer responded to Parent that a full IEP review would not occur
at the upcoming meeting but needed to wait until the annual November 2012 meeting. (Ex. S21.)
Ms. Shearer also stated that student schedules could not be discussed at the ESY team meeting
because forecasting and bell schedules had not been completed, and could be discussed at a later
date. (Id) Ms. Shearer requested that all future communication and requests be directed through
her. (Ex. S21 at 2.)
On May 20, 2012, Parent emailed Ms. Shearer concerning the ESY regression and
recoupment data and questioning the District's refusal to hold an IEP meeting. (Ex. S21 at 1.) Ms.
Shearer then instructed Parent to direct all future discussions about ESY and IEP meetings through
legal counsel. (Ex. S21 at 1).
On May 31, 2012, the District scheduled an IEP team meeting for June 8, 2012. (Ex. S24.)
The agenda for the meeting centered on Student's ESY eligibility for summer 2012. (Ex. S25.) At
6 - OPINION AND ORDER
the June 8, 2012 meeting, Parent wanted to discuss issues other than ESY, but the district refused.
(Ex. S26.) The District explained the ESY criteria and presented the regression and recoupment data
collected by Student's teachers over the 2011-2012 winter break. Parent disputed the regression and
recoupment data because it was presented in summarized form. Parent requested the underlying
data, and asked the District to use summer break data to consider ESY eligibility. (Ex. S26 at 4-5.)
Parent also requested that the District compare the present levels set forth in the March 2011 and
November 2011 IEP's to determine eligibility. (Id.) The District determined that based on the
winter break data, Student did not qualify for ESY because there was not greater than 10 percent
regression in loss of skills or behaviors. (Exs. 26 at 5-6; Ex. 27 .)
On September 9, 2012 ALJ Messecar issued a Final Order, finding a number of procedural
and substantive violations. In relevant part, ALJ Messecar determined that the District denied
Parents the opportunity to meaningfully participate in Student's education and failed to provide
Student a free and appropriate public education ("F APE") in the 2011-2012 academic year. Forest
Grove, 2014 WL 2592654, at *9-10. Notably, ALJ Messecar made the following conclusions oflaw:
1. District denied Parents the opportunity to meaningfully participate in the Student's
education during the 2009-2010, 2010-2011, and 2011-2012 academic years, in
violation ofIDEA and its implementing Oregon Revised Statutes (ORS and Oregon
Administrative Rules (OARs); and
2. District failed to identify Student as a student with a disability in all areas of
disability during the 2009-2010, 2010-2011 and 2011-2012 academic years, in
violation of the IDEA ... ;
3. District failed to evaluate Student in all areas of suspected disability during the
2009-2010, 2010-2011 and 2011-2012 academic years, in violation fo the IDEA .
. .,
7 - OPINION AND ORDER
4. District failed to provide Student with a free appropriate public education (F APE)
during the 2009-2010, 2010-2011 and 2011-2012 academic years, in violation of
the IDEA ... ;
5. District provided an appropriate placement for Student during the 2009-2010,
2010-2011 and 2011-2012 academic years.
Forest Grove, 2014 WL 2592654, at *9-10. ALJ Messecar ordered that the District provide the
following remedies:
(1) a comprehensive evaluation to determine Student's present levels; (2) an IEP
meeting to draft a new IEP based on the comprehensive evaluation; (3) "two hours
of direct transitional reading instruction for every week of instruction Student should
have received between September 2010 and December 6, 2012"; (4) two hours of
transition math instruction for every school week between September 2010 and
December 6, 2012; (5) sixty minutes of anxiety counseling per week until Student
turns 21; (6) a driver's education course; (7) Specially designed instruction which
employs "the learning techniques described in the 2005 and 2008 evaluations ... and
described by Mr. Larsen in the November 2011 IEP"; and (8) training for District
staff on IDEA protocol for writing and implementing IEPs.
Forest Grove, 2014 WL 2592654, at *10.
Consistent with ALJ's Messecar's Final Order, on September 19, 2012, Student was
scheduled for weekly counseling services with Teresa Mouw, the school Mental Health Specialist,
on Tuesdays from 8:45 to 9:45 a.m. (Ex. S34.) On September 21, 2012, Parent was instructed to
direct all her communications concerning the due process hearing and the ALJ' s decision to the
District's legal counsel. (Ex. S35.) On September 24, 2012, Parent sent an email to Ms. Shearer
regarding changing Student's fall schedule to include life skills training. (Ex. S36.) Ms. Shearer
responded that all communications regarding ALJ Messecar' s order should be handled by legal
counsel. (Ex. S36.)
On September 27, 2012, Parent again emailed Ms. Shearer regarding payment for obtaining
an evaluation for Student. (Ex. S37.) That same day, the District's attorney asked Parent's attorney
8 - OPINION AND ORDER
to inform Parent not to contact the District staff about issues concerning the due process order, and
that District staff had been instructed not to open Parent's emails, but instead to forward them to
counsel. (Ex. S37.) Parent continued to send emails to District staff. On October 2, 2012, Ms.
Shearer again instructed Parent to contact District counsel instead of instead staff. (Ex. S39.) On
October 3, 2012, Parent again emailed Ms. Shearer (informing Shearer that "I do not take orders
from your attorney"), and continued to inquire about matters covered in the due process order. (Ex.
S39.) Later that day, the District's counsel informed Parent's attorney that due to the repeated and
aggressive nature of Parent's emails, emails from Parent would be unopened, routed to "trash," and
blocked. (Exs. S39, S42.) Thereafter, the District staff blocked Parent's email address. (Exs. S39,
S42.)
On October 4, 2012, Parent's attorney responded to the District's attorney, indicating that
Parent apologized for the aggressive tone of her October 3rd email. (Ex. S39.) Parent's attorney
indicated that counsel would not be involved in day-to-day communications between the District and
Parent, but would handle meetings and schedules, and matters related to the due process order. (Ex.
S39.)
On October 2, 2012, Student was evaluated by Cynthia Arnold, Ph.D., for anxiety issues as
part ofthe comprehensive independent education evaluation ("IEE") ordered by ALJ Messecar. (Ex.
S38.) Dr. Arnold found that Student's academic skills are very impaired, and that her total
achievement is extremely low. Dr. Arnold theorized that Student had received a lot of one-on-one
help and remediation with her academic skills. However, Dr. Arnold indicated that Student's
functional, novel use of information was quite limited. (Ex. S38 at 3.) Dr. Arnold diagnosed
9 - OPINION AND ORDER
Student with Mild Mental Retardation, and noted that her testing did not support a primary anxiety
disorder. (Id.)
In early October 2012, Student had two incidents at school where she was crying in class.
Ms. Mouw's October 9, 2012 progress notes from 8:45 a.m. reflect that Ms. Mouw attempted to
engage Student in discussing why she was crying in Judith Bartoo' s class; Student denied crying.
(Ex. S41 at 1.) Ms. Mouw's progress notes from later that day at 1:10 p.m. indicate that she was
asked by Ms. Taplin to meet again with Student because Student seemed confused, was repeating
herself, and was having difficulty completing her work. (Ex. S41 at 2.) Student requested to return
to class. (Id.) Parent discussed Student's behavior with two of her teachers, Ms. Bartoo and Jill
Hertel via telephone on October 11, 2012. (Ex. S42 at 2.)
On October 11, 2012, Student met with Dr. Ensroth at which time Parent expressed concerns
about Student's behavior seeming increasingly forgetful and confused. (Ex. S44.) Dr. Ensroth's
progress notes reflect that Student was pleasant, repeated herself, and was forgetful. (Id.) Dr.
Ensroth' s progress notes also reflect that Parent was frustrated with the lack of communication from
teachers, but that Parent was able to reach Student's teacher via telephone. (Ex. S44 at 1.) Dr.
Ensroth diagnosed an anxiety disorder, and recommended further psychological evaluation to rule
out a thought process disorder. (Id. at 2.)
On October 15, 2012, Dr. Ensroth wrote a letter indicating that he had recently seen Student,
who showed signs of confusion, anxiety, and that without close monitoring, there was a risk of
Student's symptoms worsening. (Ex. S46.) Dr. Ensroth noted Student's signs were not as severe
as the year prior and he prescribed medication. (Id) Dr. Ensroth recommended that school staff
10 - OPINION AND ORDER
monitor Student closely, have a counselor available to speak with Student, and that school staffhave
regular and open communication with Parent. (Id.)
On Octa ber 16, 2012, the District's attorney confirmed via email to Parent's attorney that the
IEP team meeting would occur on November 13, 2012. (Ex. S 47, S48.) In that email, the District
requested information pertinent to developing the new IEP, including Dr. Ensroth's letter and his
treatment notes, and any other evaluations completed as part of the IEE orderd by ALJ Messecar so
that proposed new present levels could be drafted and provided in advance of the November 13,
2012 meeting. (Id.) The District also advised that Parent was expected to follow the school's
medication protocol for administering medications to Student, and that while a new communication
protocol is established, Parent had permission to contact any high school administrator for any
emergency involving Student. (Id.) On October 24, 2012, the District's attorney again contacted
Parent's attorney about scheduling compensatory education, and indicated that Parent may contact
any of Student's teachers regarding issues relating to the classroom and that Brad Bafaro, the Forest
Grove Special Education Director, would handle any issues relating to special education. (Ex. S48
at 3.)
In an Occupational Therapy evaluation completed on October 24, 2012, Student's scores on
fine motor testing and dexterity were in the low to below average range, yet showed that Student had
improved since her previous testing. (Ex. S50.) Direct occupational therapy services were not
recommended. (Exs. D6, S50.)
The IEP team met on November 13, 2012, to update Student's IEP. Parents and their
attorney were present. The team had an opportunity to review the draft IEP prior to the meeting.
(Ex. S5 l at 2). The team discussed present level data in the areas reading, writing, and math, and
11 - OPINION AND ORDER
noted that Student's progress in language and communication had been slow. (Id. at 2-3.) Parents
asked whether the concept of time was taught in a functional capacity, and whether Student's
confusion "episodes" were isolated instances or should be included in the IEP. (Ex. S51 at 3.)
Parents requested that Dr. Ensroth's recommendations be included in Student's present levels. (Ex.
S51 at 3.) Parents expressed concern about Student's daily living skills, staying on task, and
socialization. (Ex. S5 l at 4.) The team drafted a post-secondary goal with Parents' input. (Ex. S5 l
at 5.) The team broadly discussed functional reading, math, and community based living skills and
agreed to postpone a decision on the IEP until Parents could review those goals. (Ex. S5 l at 5-6.)
The IEP team met again on November 27, 2012. At that meeting, the team discussed
Student's present levels, and Parent expressed concern about Student's mental health. (Ex. S56 at
2.) Parent's attorney expressed a desire to have Occupational Therapy added into the IEP, and the
team agreed to add any specific concerns into the accommodations portion of the IEP. (Ex. S56 at
3.) The team addressed Student's functional math goal and agreed to Parent's request to add as a
baseline that Student does not understand the lapse of time. The team discussed Student's reading
goals and that Student's baseline for vocabulary is zero percent. (Ex. S56 at 4.) With respect to the
transition life skills of transportation and job applications, the team agreed to add as present level
that Student has not demonstrated an ability to perform these activities independently. (Ex. S56 at
4.) The team discussed kitchen safety and work experience goals and whether those goals would be
developed in the community or at school. (Ex. S56 at 5.) Parent inquired about Student's unit
writing goal and expressed concern that they were not included in the draft IEP. (Ex. S56 at 5).
Parent also asked that goal of self-advocacy and managing stress be added and a desire for Student
to gain practical experience with those goals. (Ex. S56 at 5.) The team decided to implement the
12 - OPINION AND ORDER
transition goals at the semester break on January 7, 2013. (Id. at 6.) Parent inquired about the
appropriate placement for Student in work experience. (Id.) The November 2012 IEP included
specially designed instruction ("SDI") in functional reading. (Ex. S57 at 16.)
On January 18, 2013, Parent emailed Ms. Taplin with concerns about the November 2012
IEP. (Ex. S61.) Parent indicated that Student needed 4.5 credits to graduate, and therefore would
not be graduating early. Thus, Parent expressed a desire for Student "to continue in academics
throughout her transition years." (Ex. S61.) Parent requested that information about classes taught
at the community transition house, and a list of businesses working with the District to provide
transition skills. Parent also requested that Student's functional math goals be raised to include
working with a calculator. (Ex. S6 l.) Parent indicated they wanted changes to Student's transition
life skills goals, including that Student to use her iphone/ipad to track using the bus and schedule and
eliminating kitchen safety goals. (Ex. S61.) Parent requested that Student return to Basic English
to work on her reading and writing skills. (Ex. S61.) Parent asked for an IEP team meeting on
February 4, 2013 to discuss Student's special education reading instruction. (Ex. S63.) Parent
questioned the District's placement of Student in Treble Choir and New Careers, and requested that
Student be placed in a special education New Careers class instead. (Ex. S63.)
Student turned 18 years of age on January 31, 2013, and Parent was named legal guardian
and educational surrogate. (Exs. S62, S87.)
On February 8, 2013, the District's attorney responded to Parent's concerns, declining to hold
an IEP meeting on February 4, 2013. The attorney indicated the transition goals spelled out in the
November 2012 IEP had been in place for one month because the parties agreed to a January 7, 2013
implementation date, and the District believed the current IEP goals were appropriate. (Ex. S64 at
13 - OPINION AND ORDER
2.) Because of the volume of emails from Parent to District staff, the District's attorney advised
Parent of the following protocol: (1) for day-to-day issues such as field trips, school pick-up,
emergencies or health issues, Parent could continue to contact appropriate District staff and teachers;
and (2) for issues relating to IEP changes, cuniculum, and implementation, Parent should email once
per week to Mr. Bafaro, and Mr. Bafaro would respond within three school days. (Ex. S64.)
On February 27, 2013, Parent emailed Superintendent Curtis to request a meeting to discuss
Student's health and safety. (Ex. S68 at 2.) Dr. Curtis responded that she was unable to meet due
to ongoing litigation. (Ex. S68 at 2.)
On March 4, 2013, Ms. Shearer informed Parent via email that they were scheduling an IEP
team meeting for April 15, 2013, and that progress reports had been mailed. (Ex. S68.) On March
5, 2013, Parents requested a due process hearing in the instant action (DP 13-104).
On March 13, 2013, Ms. Shearer requested Parent's input for the agenda items. (Exs. S69.)
Parents responded with a list of twelve agenda items, including, ESY, Student driver's license,
transitional reading and writing, work experience, and compensatory education. (Exs. S70, S73 at
3.) On April 10, 2013, the District responded to Parents, indicating that the IEP team meeting was
not a full IEP review, but would cover ESY services for the summer, Student's functional reading
goal, and consideration of new outside reports from Parents. (Ex. S73 at 1.) The District also sent
a prior written notice indicating that the primary purpose of the April 15, 2013 team meeting was
to discuss ESY eligibility, and any significant new information since the November 2012 meeting.
(Ex. S74.)
At the April 15, 2013 meeting, Parents requested that the IEP team revise the existing
functional goals, add goals they believed were missing, and revise the transition goals to align with
14 - OPINION AND ORDER
Student's present levels. Parents presented a list of their concerns at the April 15 meeting, including
reviewing the regression and recoupment data, how speech was being delivered, changing Student's
post-secondary transition goal to college academics (from college recreational) and competitive
employment, changing Student's placement to general education from transitional education in
reading and writing. Parents requested that two paragraphs they claimed were unfairly removed from
the November 2011 IEP regarding how Student processes auditory information be reinserted in the
November 2012 IEP. (Ex. S79.) At the meeting, Parents also presented graph charts comparing
Student's present levels from the November 2011 IEP with the November 2012 IEP and progress
notes from February 2013. (Exs. S81-84.)
At the meeting, Parents noted that Student is meeting 100 percent of her functional math
goals, and asked why Student continued to be placed in functional math. (Ex. S84 at 2.) Parents
requested that Student be placed in a higher functioning community life skills class and wanted
Student's goals to be more rigorous. (Ex. S84 at 3.) The team discussed that ESY data for work
experience showed regression, and that Student was eligible for ESY in work experience. (Ex. S84
at 3.) Parents requested that Student's functional reading goal be revised and that Student be placed
in academic reading and writing classes. (Ex. S84 at 4-6.) The team also discussed that Student was
not independent in her transportation goal and Parents requested the goal be revised. (Id) The team
decided that the functional reading goal would be revised, and draft language would be sent to
Parents, that social stories would be added to the modification/accommodations page, and that
Student qualified for ESY summer services. The team heard multiple concerns from Parents. (Ex.
S84 at 6.)
15 - OPINION AND ORDER
After the April 15, 2013 team meeting, Parent sent multiple emails continuing to express her
disagreement that the IEP was not updated to reflect Parent's concerns about ESY, speech time
specifics, the two statements about how Student best learns, a technology specific transition goal,
and a nurse protocol. (Exs. S89, S90, S91, S92, S93.)
On April 18, 2013, Ms. Taplin completed a Teacher Questionnaire for Student's Social
Security disability application in which she indicated that Student's current instructional level for
reading and math were at the second grade level and written language was at the third grade level.
(Ex. S72 at 7.) Ms. Taplin indicated that Student has a "serious problem" (rated a four out of five)
in all areas of acquiring and using information. (Ex. S72 at 8.) In the area of attending to and
completing tasks, Ms. Taplin noted more varied responses, with some rated a two (a "slight
problem") and others a five (a "very serious problem"). Of note, Ms. Taplin indicated that Student
has a very serious problem in ability to work "without distracting self or others" and that Student is
constantly distracted by others and has difficulty focusing. (Ex. S72 at 9.)
On May 29, 2013, the District informed Parent that due to the continued disagreements, all
future correspondence should be directed to the District's attorney. (Ex. S97.) On May 31, 2013,
the District offered ESY services in three areas: work experience, reading, and speech/language.
(Exs. S96, S98.) Parents continued to express that Student also qualified for ESY in the areas of
math and writing. (Ex. S96.) On June 4, 2013, the District's attorney emailed Parent the summer
schedules for Student's ESY and compensatory education. (Ex. S99.)
On August 9, 2013, Parents filed a First Amended Complaint in DP 13-104. (Answer, Ex, 1,
First Am. Compl., ECFNo. 3-1.) ALJ Allen held three days ofhearings on September23-25, 2013.
16 - OPINION AND ORDER
After hearing the testimony and reviewing the exhibits submitted by the parties, ALJ Allen made the
following conclusions of law:
(1) the District denied the Student educational opportunities and denied Parents a
meaningful opportunity to participate in Student's education from December 6, 2011
until the end of the school year, during the 2011-2012 academic year.
(2) The District denied the Student educational opportunities and denied Parent a
meaningful opportunity to participate in the Student's education during the 20122013 academic year.
(3) The District failed to provide the Student a free appropriate public education
during the 2011-2012 academic year.
(4) The District failed to provide the Student a free appropriate public education
during the 2012-2013 academic year.
(Final Order at 12.) The ALJ ordered the District to "convene a facilitated IEP meeting to discuss
all Parents' concerns" within 21 days of the order. (Final Order at 31.) With respect to the
compensatory remedies ordered by ALJ Allen, the ALJ indicated the following:
[t]he violations for the 2011-2012 academic year share a common nucleus of
operative facts as those found determined by ALJ Messecar. The current due process
claim simply picks up [ ] at the filing date of that due process complaint.
Accordingly, an award of continuing compensatory education for the relevant period
is appropriate. As such the District is hereby order[ed] to provide two hours each of
direct transitional math and transitional reading instruction for every week of
instruction Student should have received between December 7, 2011 and August 14,
2013.
(Final Order at 32.) Therefore, ALJ Allen ordered the District to "continue to provide compensatory
education services via certified special education teacher with a high school endorsement, including
transportation to and from such services, for the denial ofFAPE in the 2011-2012 and 2012-2013
academic years." (Final Order at 31.) ALJ Allen also instructed the District to continue to "deliver
SDI by employing learning techniques effective for Student" as ordered by ALJ Messecar. (Final
17 - OPINION AND ORDER
Order at 32.) And, because "Parents did not demonstrate a new or independent failure to properly
evaluate Student," ALJ Allen ordered the District to provide District staff training for IEP
development and evaluating Student consistent with ALJ Messecar's decision only. (Final Order
at 32.)
The District appealed the ALJ's Final Order to this court on March 18, 2014. (Compl., ECF
No. 1.)
On June 9, 2014, this court reversed in part and affirmed in part the conclusions of ALJ's
Messecar's decision in DP 11-131. Concerning Parents' argument that the District denied them an
opportunity to meaningfully participate by rejecting the various independent evaluations, this court
partially agreed with the ALJ's findings. Forest Grove, 2014 WL 2592654, at *13. In this regard,
the court affirmed ALJ Messecar' s decision that the District violated the IDEA for failing to consider
Ensroth's October 2011 and Buckendorfs August 2011 reports when drafting the November 2011
IEP. Forest Grove, 2014 WL 2592654, at *18. As relevant to this case, the court determined that
the November 2011 IEP denied Student a FAPE by failing to address Student's anxiety. Id. at 3 5.
Legal Standard
The IDEA permits a party aggrieved by an ALJ's decision to file an administrative appeal
in United States District Court. 20 U.S.C. § 1415(i)(2)(A). Judicial review in IDEA cases differs
substantially from judicial review of other agency actions. MC. ex rel. MN v. Antelope Valley
Union High Sch. Dist. ("Antelope Valley"), 858 F.3d 1189, 1194 (9th Cir. 2017). The court reviews
the full administrative record as well as any additional evidence introduced by either party and must
base its decision on a preponderance of the evidence, and "grant such relief as the court determines
is appropriate." 20 U.S.C. § 1415(i)(2)(C). The preponderance of the evidence standard empowers
18 - OPINION AND ORDER
courts to conduct a more detailed and independent analysis, but is "by no means an invitation to the
courts to substitute their own notions of sound educational policy for those of the school authorities
which they review." Hendrick Hudson Cent. School Dist. Bd. Educ. v. Rowley ("Rowley"), 458 U.S.
176, 198 (1982). Complete de nova review is inappropriate. Amanda J ex rel. Annette J v. Clark
County Sch. Dist., 267 F.3d 877, 887 (9th Cir. 2001).
The ALJ' s decision is accorded "due weight" and the reviewing court must, at least,
"consider the findings carefully[.]" R.B. ex rel. F.B. v. Napa Valley Unified Sch. Dist. ("Napa
Valley"), 496 F.3d 932,937 (9th Cir. 2007) (internal quotation marks omitted). The ALJ's findings
must be "thorough and careful" to receive particular deference. Antelope Valley, 858 F.3d at 1194
& n. l. A court "treat[s] a hearing officer's findings as 'thorough and careful' when the officer
participates in the questioning of witnesses and writes a decision contain[ing] a complete factual
background as well as a discrete analysis supporting the ultimate conclusions." Napa Valley, 496
F .3 d at 94 2-4 3. On review, the district court "must actually examine the record to determine whether
it supports the ALJ's opinion." Id. Ultimately, the degree of deference due to the ALJ is largely "a
matter for the discretion of the courts." Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1311 (9th
Cir. 1987).
Lastly, at the hearing, as the party seeking relief at the administrative level, Student had the
burden of proof in challenging the District's action. Van Duyn ex rel. Van Duyn v. Baker Sch. Dist.
5J, 502 F.3d 811, 819-20 (9th Cir. 2007). Before this court, the District has the burden of
demonstrating the ALJ's decision should be reversed. J W. ex rel. JE. W. v. Fresno Unified Sch.
Dist. ("Fresno Unified'), 626 F.3d 431, 438 (9th Cir. 2010); L.M v. Capistrano Unified Sch. Dist.
("Capistrano"), 556 F.3d 900, 909 (9th Cir. 2009).
19 - OPINION AND ORDER
Discussion
The IDEA provides federal grants to state and local educational agencies to assist in
educating children with disabilities. Endrew F. ex rel. Joseph F. v. Douglas County Sch. Dist. RE-1,
137 S. Ct. 988, 993 (2017). In enacting the IDEA, Congress sought "to ensure 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, andindependentliving[.]"20U.S.C. § 1400(d)(l)(A);Antelope Valley, 858
F.3d at 1195. "To accomplish these objectives, the federal government provides funding to
participating state and local educational agencies, which is contingent on the agency's compliance
with the IDEA' s procedural and substantive requirements." Anchorage Sch. Dist. v. MP., 689 F.3d
1047, 1053-54 (9th Cir. 2012); Endrew, 137 S. Ct. at 994; Amanda J, 267 F.3d at 891.
A free appropriate public education, or "FAPE" includes both "special education" and
"related services," which must be provided in accordance with the child's "individualized education
program" or IEP. Endrew, 137 S. Ct. at 994. Thus, the state must provide special education and
related services in conformity with a child's individualized education program ("IEP"). Id.
The IEP is "the centerpiece of the statute's education delivery system for
disabled children." Honigv. Doe, 484 U.S. 305,311 (1988). A comprehensive plan
prepared by a child's "IEP Team" (which includes teachers, school officials, and the
child's parents), an IEP must be drafted in compliance with a detailed set of
procedures. § 1414(d)(l)(B) (internal quotation marks omitted). These procedures
emphasize collaboration among parents and educators and require careful
consideration of the child's individual circumstances. § 1414. The IEP is the means
by which special education and related services are "tailored to the unique needs" of
a particular child. Rowley, 458 U.S. at 181.
Endrew, 137 S. Ct. at 994. The IEP identifies, among other things, "the child's 'present levels of
academic achievement and functional performance,' establishes measurable annual goals, addresses
20 - OPINION AND ORDER
the services and accommodations to be provided to the child and whether the child will attend
mainstream classes, and specifies the measurement tools and periodic reports that will be used to
evaluate the child's progress." Anchorage, 689 F.3d at 1054 (quoting 20 U.S.C. § 1414(d)(l)(A));
Endrew, 137 S. Ct. at 994. A complete IEP that is fully compliant with the IDEA must be in place
at the beginning ofeach school year for each eligible child. Anchorage, 689 F.3d at 1054; 20 U.S.C.
§ 1414(d)(2)(A).
When parents and educators disagree about what a child's IEP should contain, parents may
tum to dispute resolution procedures set forth in the IDEA. A challenge may be procedural or
substantive. Fresno Unified, 626 F.3d at 432-33; Grants Pass Sch. Dist. v. Student, Case No. 1 :14cv-01115-PA, 2015 WL 1951749, at *2-3 (D. Or. Apr. 29, 2015). A procedural violation occurs
when a state violates the IDEA' s statutory or regulatory procedures in creating an IEP. A substantive
violation occurs when a state offers an IEP that is not reasonably calculated to enable the child to
receive a meaningful educational benefit. Fresno Unified, 626 F.3d at 432-33.
When analyzing whether an agency provided a student a FAPE, the court conducts a two-part
inquiry. First, the court must consider whether the state complied with the procedures set forth in
the Act. Doug C. v. Hawaii, Dep 'to/Educ., 720 F.3d 1038, 1043 (9th Cir. 2013)(intemalquotation
omitted). Second, the court must determine whether the IEP is reasonably calculated to enable the
child to receive educational benefits. Id. A state must meet both requirements to comply with the
obligations of the IDEA. Rowley, 458 U.S. at 207. Ninth Circuit has held that "Endrew did not
change, but rather simply clarified Rowley." Antelope Valley, 858 F.3d at 1200.
On appeal to this court, the District challenges many of ALJ Allen's factual findings as
inaccurate or incomplete, and asks the court to reverse three conclusions of law: (1) the District
21-OPINION AND ORDER
denied educational opportunities to Student and denied Parents the opportunity to meaningfully
participate in Student's education from December 6, 2011 through the academic year ending in June
2012, and the entire academic year 2012-2013; (2) District failed to provide Student a F APE during
the 2011-2012 and the 2012-2013 academic years; and (3) the appropriate remedy is to convene a
facilitated IEP team meeting to discuss Student's educational program, and provide reading and
mathematics compensatory education. The District maintains that where ALJ Allen's Final Order
relied upon ALJ Messecar' s decision, his conclusions must be overturned because this court reversed
many of those conclusions. Moreover, the District asserts that any remedies ordered by ALJ Allen
have already been provided, and therefore, requiring any further remedies is unnecessary.
In response, Student contends that ALJ Allen's decision properly determined that the District
engaged in procedural and substantive violations, and asks that the court affirm ALJ Allen's
decision.
I.
Academic Year December 6, 2011 to 2012
A.
The District Denied Parents a Meaningful Opportunity to Participate in Student's
Education from December 6, 2011 Through the 2012 Academic Year by Continuing
to Rely on the November 2011 IEP
1.
standard
The District must comply with the procedural requirements of the IDEA. Fresno Unified,
626 F .3d at 451-52. Not all procedural violations result in the denial of a F APE. A student is denied
a F APE "only when the procedural violation results in the loss of educational opportunity or
seriously infringes the parents' opportunity to participate in the IEP formation process." Id. (internal
quotations and citations omitted); Capistrano, 556 F.3d at 909; W.G. v. Bd. of Trustees of Target
22 - OPINION AND ORDER
Range Sch. Dist. No. 23 ("Target Range"), 960 F.2d 1479, 1484 (9th Cir.1992), superseded by
statute on other grounds as stated in Napa Valley, 496 F.3d at 938-39.
2.
analysis
In his Final Order, ALJ Allen concluded that the District's refusal to convene an IEP meeting
during the remainder of the 2011-2012 school year resulted in a continuing procedural violation.
(Final Order at 15.) ALJ Allen highlighted that ALJ Messecar concluded that the District denied
Parents a meaningful opportunity to participate in developing the November 2011 IEP because the
IEP team ignored Buckendorfs August 2011 report, and ignored Ensroth's October 2011 report.
Thus, ALJ Allen concluded the District's refusal to hold another IEP team meeting was a continuing
procedural violation from December 6, 2011 through the end of the academic year in June 2012.
(Final Order at 15.) Likewise, ALJ Allen determined that the District's continued reliance on the
faulty November 2011 IEP was a continuing substantive violation from December 6, 2011 through
the end of the academic year in June 2012. (Final Order at 15-16, 22.)
The District argues that ALJ Allen's findings of fact and conclusions oflaw on this point are
not entitled to deference because they rely on ALJ Messecar' s flawed fact finding and analysis. The
District contends it was not required to hold a new IEP meeting during the 2011-2012 school year
for several reasons. First, Parents requested a due process hearing on December 6, 2011, triggering
the "stay put" provision, and therefore, the District could not change Student's placement. The
District highlights that ALJ Messecar conducted hearings on multiple days in April, May and June
2012, and issued a Final Order on DP 11-131 on September 12, 2012. According to the District,
because of the pending due process hearing, and attendant stay put provision, they were not required
to conduct another IEP meeting. Second, the District contends that it is required to conduct IEP's
23 - OPINION AND ORDER
annually, and therefore, it satisfied that requirement by conducting an IEP team meeting in
November 2012. Third, the District argues that even if it should have conducted a meeting, its
failure to do so did not result in a substantive violation. The District contends that ALJ Allen relied
solely on ALJ Messecar' s decision, which this court later overturned, and consequently, the court
should overturn ALJ Allen's conclusion. Student responds that ALJ Allen correctly determined that
the District's continued use of the November 2011 IEP resulted in a procedural and substantive
violations of the IDEA. Student is correct.
Although this court overturned many of ALJ Messecar' s findings, conclusions, and remedies,
the court affirmed some as well. As Student indicates, this court determined that the District's
failure to consider "the updated [2011] Ensroth and Buckendorf reports when drafting the November
2011 IEP" resulted in a procedural violation. Forest Grove, 2014 WL 2592654, at *18. Therefore,
as ALJ Allen correctly determined, this procedural violation continued throughout the 2011 to 2012
academic year by refusing to hold an IEP team meeting to consider that information.
The court is not persuaded by the District's argument that due to the "stay put" provision, it
was prohibited from holding an IEP meeting during the pendency of the underlying due process
hearing.
See Anchorage, 689 F.3d at 1056 ("the mere existence of the 'stay put' order did not
excuse the [district] from its responsibility to have a statutorily compliant IEP in place at the
beginning of each school year"); JG. ex rel. Jimenez v. Baldwin Park Unified Sch. Dist., 78 F. Supp.
3d 1268, 1287 (C.D. Cal. 2015) (holding stay put provision did not excuse school from having an
up-to-date IEP in place). The District contends that under stay put, it is prohibited from changing
a student's placement and thus it was not required to convene an IEP meeting. See OAR 581-01523 60( 5)(a) (providing that " [d]uring the pendency of any due process hearing or judicial appeal, the
24 - OPINION AND ORDER
child must remain in the present placement" unless the parties agree otherwise). However, as ALJ
Allen correctly observed, the District could have conducted an IEP meeting and considered the
updated reports, thereby providing Parents with an opportunity to provide input and discuss possible
amendments to the IEP, even if it determined changes to the IEP were unwarranted. See Anchorage,
689 F .3d at 1057 (holding that stay put did not prohibit district from considering updates to student's
present levels, functional performance, and establishing corresponding goals and objectives). Here,
the District's refusal to consider the updated reports under the guise of stay put continued to deny
Parents an opportunity to meaningfully participate in Student's education from December 6, 2011
to the end of the academic year 2012.
The District's contention that it was not required to conduct an IEP team meeting before
November 2012 to comport with its annual requirement likewise is unpersuasive. See 20 U.S.C. §
1414(d)(2)(A) (requiring an IEP to be in place at the start of each academic year). In order to
accomplish its purpose, the IDEA requires educational agencies have each child's IEP in effect at
the beginning of each school year. 20 U.S.C. § 1414(d)(2)(a). An education authority's failure to
develop an IEP for a student prior to the beginning of a school year results in a violation of IDEA.
See A.Vex rel. VazAntunesv. Lemon Grove Sch. Dist., Case No. 3:16-cv-0803-CAB-(BLM), 2017
WL 733424, at* 13 (S.D. Cal. Feb. 24, 2017) (finding district's failure to have a valid IEP in place
at start of school year denied student PAPE); D.C. v. Dep 'to/Educ., 550 F. Supp. 2d 1238, 1250 (D.
Haw. 2008) (district's failure to have a valid IEP in place at the beginning of the school year resulted
in denial ofFAPE)(citing Gadsby v. Grasmick, 109 F.3d 940,950 (4th Cir. 1997)). Here, because
the November 2011 IEP was procedurally defective, the District's continued reliance upon it fails
to satisfy its obligation under the IDEA to have a fully compliant IEP in place at the start of each
25 - OPINION AND ORDER
academic year for every eligible child. Anchorage, 689 F.3d at 1056 (determining district's
continued reliance on an outdated IEP violated IDEA). Therefore, the court affirms ALJ Allen's
conclusion that the District's refusal to hold an IEP meeting from December 6, 2011 through the end
of the academic year resulted in a violation.
Finally, the District contends that even if there was a procedural violation for failing to
convene another IEP team meeting in the 2011-2012 academic year, the deficiency did not result in
denial of FAPE. The District maintains that ALJ Allen did not undertake his own analysis of the
November 2011 IEP, but instead relied on ALJ Messecar's ruling, which this court overturned.
ALJ Allen concluded that the District's continued reliance on the November 2011 IEP
resulted in denial of FAPE based on ALJ Messecar' s findings. As the District correctly highlights,
the court overturned many of ALJ Messecar' s substantive violations related to the November 2011
IEP. Accordingly, the court overturns ALJ Allen's substantive violations related to the November
2011 IEP that are premised on ALJ Messecar's findings and conclusions.
However, this court affirmed ALJ Messecar's conclusion that the elimination of the selfmanagement curriculum regarding Student's anxiety from the November 2011 IEP resulted in a
substantive violation of the IDEA. Forest Grove, 2104 WL 2592654, at *35. Therefore, the
District's continued reliance on the November 2011 IEP through the remainder of the academic year
2012 resulted in denial of a FAPE. Whether, as the District notes, a remedy was requested or is
appropriate, will be discussed below.
Accordingly, the court affirms ALJ Allen's conclusion that the District's reliance on the
faulty November 2011 IEP denied Student a FAPE from December 6, 2011 through the academic
year in June 2012.
26 - OPINION AND ORDER
B.
The District's Email Communication Protocols Did Not Result in Procedural
Violations
1.
standard
Haimless procedural errors do not constitute a denial of FAPE. Capistrano, 5 56 F. 3d at 909.
The court may grant relief for a procedural violation only if the error results in the loss of an
educational opportunity or "significantly restricted parental participation." Id. The IDEA procedural
requirements impose on school districts a duty to conduct a "meaningful meeting with the
appropriate parties" when formulating an IEP. Target Range, 960 F.2d at 1485; see also 34 C.F.R.
§ 300.513(a)(2); OAR 581-015-2190(1) (providing that school districts must provide parents with
an opportunity to participate in meetings regarding the "identification, evaluation, IEP and
educational placement" of the child). Yet, Parents are not entitled to unlimited communications
concerning their child. Forest Grove, 2014 WL 2592654 at* 13. "A school district need not involve
parents in 'informal or unscheduled conversations involving school district personnel and
conversations on issues such as teaching methodology, lesson plans, or coordination of service
provision ifthose issues are not addressed in the child's IEP. '" Id. (quoting OAR 581-015-2190(4)).
See also D.A. v. Meridian Joint Sch. Dist. No. 2, Case No. 1:12-cv-00426-CWD, 2014 WL 43639,
at *8 (D. Id. Jan. 6, 2014) (noting parental participation "does not require districts to 'acquiesce' to
parents"); Student v. Silver Falls Sch. Dist., Case No. DP 13-113 at 26 (stating that Parents not
entitled to notice and participation in routine day-to-day school matters) (attached at Pl.' s Reply Br.,
Ex. 2, ECF No. 63-2).
27 - OPINION AND ORDER
2.
analysis
As detailed at length above, at various times, due to the volume and tone of Parent's emails
received by the District's staff, the District put in place various communication protocols. ALJ Allen
concluded that the District imposed "unreasonable communication restrictions" that prevented
Parents from contacting Student's general and special education teachers by instructing Parents to
direct their emails to Ms. Taplin. (Final Order at 17.) The ALJ then noted that Ms. Taplin was
unable to handle the volume of emails from Parents, and thus required Parents to direct their emails
to Ms. Shearer. (Final Order at 17.) The ALJ indicated that Ms. Shearer ultimately became
overwhelmed with Parents' emails and instructed Parents to communicate with the District's
attorney. ALJ Allen then determined that "the District blocked Parent's ability to send emails to
Student's teachers, instructional assistants, or other District personnel." ALJ Allen concluded that
many of Parents' concerns regarding Student's health and education "went unaddressed." (Final
Order at 17.)
The District contends that ALJ Allen's findings and conclusions that its email
communication protocol deprived Parents of the opportunity to participate in the IEP process are not
entitled to deference and should be reversed. The District argues that ALJ Allen's final order
ignores facts demonstrating that Parents meaningfully participated and provided input into
developing the IEP's and other relevant educational decisions. Additionally, the District contends
that Parents are not entitled to unlimited communication on every matter, but rather are entitled only
to meaningful participation in the IEP formulation process.
The court concludes that ALJ Allen's decision concerning the District's communication
protocols is neither thorough nor careful, and accords this portion of the decision little deference.
28 - OPINION AND ORDER
Additionally, the ALJ's conclusions oflaw regarding the communication protocols are entitled to
little deference. Here, the ALJ erroneously concluded that the District blocked Parents' emails
during the 2011-2012 academic year, contrary to evidence in the record. Moreover, the ALJ's legal
conclusion fails to consider what impact the communication protocols had on Parent's ability to
participate in the IEP formation process. Furthermore, the ALJ does not analyze or identify what
information or concerns went unaddressed.
The record before the court reflects that the District instituted a communication protocol on
November 10, 2011, several days after the November 3, 2011 IEP team meeting and several days
before the November 14, 2011 IEP team meeting at which the November 2011 IEP was finalized.
(Ex. S 106.) In that protocol, Parent was to direct all communication with teachers, the District, and
school staff through a single person, Kathryn Taplin, Student's case manager. (Ex. S106). To be
sure, Parents were instructed to limit their emails to each Friday, and that Ms. Taplin would respond
on Friday to Parents' concerns. (Ex. S 106.). Moreover, at that time, Parents were represented by
counsel, and Parents were aware of the November 14, 2011 IEP meeting and attended with their
attorney. (See Ex. S8 at 3.) The November 14, 2011 IEP team meeting minutes indicate that Parents
fully participated, asked questions, voiced concerns, and accommodations were discussed. (Ex.
S10.)
As detailed at length above, the record shows that Parents continued to communicate via
email with Ms. Taplin throughout most of the 2011-2012 academic school year. On May 18, 2012
Ms. Shearer responded to Parent's email requests, indicating that all future communication should
go through her. (Ex. S21 at 2.) This email is consistent with Ms. Shearer's hearing testimony that
Parent sent numerous emails to several staff members requesting information. (Tr. 284.) Ms.
29 - OPINION AND ORDER
Shearer testified that staff were receiving a large volume of emails, the tone was terse and
intimidating, and that the District decided to route all communication through Ms. Shearer. (Tr. 28586.) Ms. Shearer further testified that Parent's emails became excessive, and often related to the IEP
under review and the attendant due process hearing, and that staff was not comfortable responding
to those issues; therefore, communications were directed to legal counsel beginning May 20, 2012.
(Ex. S21 at 1, Tr. 287-89.) As the District indicated, the communication protocol was required at
least in part to separate out requests that might require a legal response in light of the ongoing due
process proceeding.
ALJ Allen cites no authority for his conclusion that routing communications with Parent
through its attorneys automatically results in an IDEA violation. (Final Order at 17.) Moreover, at
all times when the email protocol was in place, Parents' access to school staff by telephone and in
person was maintained. (Tr. 503.)
For example, on June 8, 2012, there was an IEP team meeting to discuss Student's eligibility
for ESY services in the summer of2012. Parents, along with their attorney, fully participated in that
meeting, sent documents to the District's legal counsel in advance, and expressed concerns at the
June 8, 2012 meeting. Although ALJ Allen stated that Parent's concerns about the Student's health
and education "went unaddressed by the District," none of those specific concerns is identified or
linked to the email communication protocol in the Final Order or in Parent's briefing to this court.
Thus, the court concludes that the communication protocol established on November 10,
2011 continuing through the 2011-2012 academic year did not "seriously infringe" on Parents'
opportunity to participate in the formulation of the November 2011 IEP, or the June ESY 2012
determination. See Cupertino Union Sch. Dist. v. K.A., 75 F. Supp. 3d 1088, 1101 (N.D. Cal. 2014)
30 - OPINION AND ORDER
(finding parents' refusal to participate in IEP formulation causing district to hold IEP meeting in
parent's absence did not seriously infringe on parents' opportunity to participate); NR. ex rel. B.R.
v. San Ramon Valley Unified Sch. Dist., Case No. C 06-1987 MHP, 2007 WL 216323, at *12 (N.D.
Cal. Jan. 25, 2007) (finding lack of parental involvement in formulating IEP and ESY was result of
parents' decision to stop cooperating, and district "should not be held accountable for parents' lack
of cooperation"). The ALJ's decision on this issue is reversed.
C.
The District's Denial of ESY in Summer 2012 Did Not Result in FAPE
1.
ESY services eligibility standard
The IDEA does not explicitly require extended school year ("ESY") services. Instead, each
public agency is required to "ensure that extended school year services are available as necessary to
provide F APE" and the child's IEP team determines on an individualized basis that it is necessary
for FAPE. 34 C.F.R. § 300.106(a)(l)-(2). The federal regulation does not specify factors for
consideration in determining ESY eligibility. NB. ex rel. CB. v. Hellgate Elementary Sch. Dist. ex
rel. Bd. ofDirs., Missoula Cty., Montana ("Hellgate"), 541 F.3d 1202, 1211 (9th Cir. 2008). '"ESY
Services are only necessary to a F APE when the benefits a disabled child gains during a regular
school year will be significantly jeopardized ifhe is not provided with an educational program during
the summer months."' Hellgate, 541 F.3d at 1211 (quoting MlYl ex rel. DM v. Sch. Dist. of
Greenville County, 303 F.3d 523, 53 7-3 8 (4th Cir. 2002)). Providing ESY services "is the exception
and not the rule" and a claimant seeking ESY services must show that ESY is "'necessary to permit
the child to benefit from his instruction."' Grants Pass, 2015 WL 1951749, at *7 (quotingHellgate,
541 F.3d at 1212).
31 - OPINION AND ORDER
In Oregon, ESY services are provided for the "maintenance of the child's learning skills or
behavior, not the teaching of new skills or behavior." OAR 581-015-2065(4); Grants Pass, 2015
WL 1951749, at *7. The Oregon regulations require that regression and recoupment be considered
when making anESY determination. Grants Pass, 2015 WL 1951749 at *8. Criteria must include
regression and recoupment time based on documented evidence or, if no documented evidence, on
predictions according to the professional judgment of the [IEP] team." OAR 581-015-2065(5).
"Regression" is defined as "significant loss of skills or behaviors in any area specified on the IEP
as a result of an interruption in education services." OAR 581-015-2065(6)(a). "Recoupment" is
"the recovery of skills or behaviors specified on the IEP to a level demonstrated before the
interruption of services." OAR 581-015-2065(6)(b). Under the District's policy, a student must
show greater than ten percent regression to be eligible for ESY services. Student does not challenge
the District's ESY criteria in this action.
"An
'appropriate'
public
education
does
not
mean
the
absolute
best
or
'potential-maximizing' education for the individual child." Gregory K., 811 F.2d at 1314. Rather,
states must provide a "basic floor of opportunity" that is "individually designed to provide
educational benefit to the handicapped child." Rowley, 45 8 U.S. at 201. "The primary responsibility
for formulating the education to be accorded a handicapped child, and for choosing the educational
method most suitable to the child's needs, was left by the Act to state and local educational
authorities in cooperation with the parents or guardians of the child." Id. at 207. "[O]nce a court
determines that the requirements of the Act have been met, questions of methodology are for
resolution by the States." Id. at 208; see also Fresno Unified, 626 F.3d at 450 ("This vagueness [in
the IDEA mandate] reflects Congress' clear intent to leave educational policy making to state and
32 - OPINION AND ORDER
local education officials."). Collection and analysis of educational data, such as regression and
recoupment data, is a matter of educational policy and methodology. See Virginia S. v. Dep 't of
Educ. Hawaii, Civil No. 06-00128 JMS/LEK, 2007 WL 80814, at *12 (D. Haw. Jan. 8, 2007)
("Questions ofESY eligibility criteria and methodology are classic examples of technical questions
of educational policy.").
2.
ESY 2012 determination
The District scheduled an IEP team meeting on June 8, 2012 to discuss Student's eligibility
for ESY services in the summer of 2012. (Ex. S26, IEP Meeting Minutes 6/8/12). At the time, the
District refused to discuss other agenda items (scheduling and transition services) proposed by
Parent. (Ex. S20 & S2 l.) At the meeting, the District explained that to be eligible for ESY services,
under District policy, the student must show greater than ten percent regression over a break to
qualify for ESY. (Ex. S26, Meeting Minutes.) The District used pre-break data information as the
baseline, and post-break monitoring over a two week period to assess whether the Student has been
able to recoup the skills or behaviors lost. If there is greater than ten percent regression, the child
may benefit from ESY services. (Final Order at 19-20.)
At the meeting, the District presented regression and recoupment evidence based on
assessments of Student in the areas of language, transition reading, and transition math. The
assessments were completed one month before winter break and two weeks after winter break, and
were summarized and entered into a worksheet that tracked Student's IEP goals and objectives. (Ex.
S23 at 4-6; Ex. S27 at 11-13.) Parent proposed that the District consider Student's regression and
recoupment by comparing Student's present levels detailed in the March 2011 IEP with the present
levels in the November 2011 IEP. According to Parent, that comparison showed declining skills.
33 - OPINION AND ORDER
Parent also expressed frustration that Student must qualify for ESY because Student is reading at the
third grade level as a junior. (Ex. S26 at 5.)
In the Final Order, ALJ Allen concluded that the District denied Parent a meaningful
opportunity to participate in Student's education by refusing to consider Parent's regression and
recoupment data, and denied Student educational opportunities in the form of summer 2012 ESY
services in the areas of transition reading, transition writing, and transition math. (Final Order at 1920.)
The District contends that the ALJ erred in determining that it was required to rely upon
Parents' preferred regression and recoupment data citing Grants Pass, 2015 WL at 1951749, at *910. In Grants Pass, the district court determined that the school district was not required to utilize
the parents' preferred method of collecting regression and recoupment data, noting that"[c]ollection
and analysis of educational data, such as regression/recoupment data, is a matter of educational
policy and methodology." Id. at 9.
The ALJ's analysis on this point is not entitled to deference. ALJ Allen found that Parent
"presented evidence" that Student's skills had fallen by comparing the present levels in the March
2011 IEP to the present levels in the November 2011 IEP, which necessarily incorporated a summer
break. (Final Order at 9.) The ALJ also found that Student's June 2012 progress notes failed to
track Student's annual goals ("AG's") or short term objectives ("STO's") set out in the November
2011 IEP. The court disagrees for several reasons.
First, contrary to the ALJ' s fact finding, Parent did not present any documented regression
and recoupment evidence for the team's consideration at the June 8, 2012 team meeting. (Ex. S26.)
At the meeting, Parent expressed frustration that Student's goals were declining and complained that
34 - OPINION AND ORDER
the regression/recoupment data should be calculated differently, but Parent did not submit
documented evidence at the meeting for the District to consider. 3 (See Ex. S26 at 4-5.) At the due
process hearing, Parent testified that she wanted the regression/recoupment data to be collected over
the summer break as a "best practice," and disagreed with the District's policy of collecting
regression/recoupment data over winter and spring breaks. (Tr. at 892-93.) Parent also testified that
she requested but did not receive the underlying information the percentages in the summer 2012
ESY worksheet. (Ex. S27 at 11-13.) However, the collection and calculation of regression and
recoupment data is a matter of educational policy and methodology, and absent tangible data for the
District's consideration, the District was not obligated to consider Parent's request to calculate
regression a different way. See Grants Pass, 2015 WL 195749, at *10 (concluding district was not
required to rely on ESY eligibility standards preferred proffered by parent and student's experts);
Virginia S., 2007 WL 80814, at *12-13 (finding that absent contrary evidence, court would not
second-guess IEP team's decision that student not eligible for ESY services).
Second, the decline in annual goals does not necessarily mean that Student's declining skills
were caused by regression over the summer. As this court determined in the previous proceeding:
Student's A Gs and ST Os are less ambitious with each IEP, Student's academic focus
changed from year-to-year. The District explained at oral argument that between May
2009 and November 2011, the focus of Student's reading curriculum shifted from
simple reading skills to reading comprehension and later to drawing inferences from
a reading passage. Student's 'declining reading level' as indicated in her AGs and
STOs from year to year merely reflects the fact that Student's reading abilities are
lower as the complexity of the reading task increases.
Parent did prepare and submit specific evidence regarding regression/recoupment to the
District at an April 15, 2013 ESY IEP meeting. (Exs. S81-S83.)
3
35 - OPINION AND ORDER
Forest Grove, 2014 WL 2592654, at *35. Indeed, as discussed at length in the prior action,
Student's IEP' s were revised to add transition goals, which included changing Student's reading and
math classes to functional life skills to best aid Student to live more independently. Forest Grove,
2014 WL 2592654, at *30. Therefore, a comparison of March 2011 IEP to November 2011 IEP
goals may not necessarily yield accurate regression data.
Third, unlike the ALJ, the court finds that the February and June 2012 progress notes tracked
the November 2011 IEP AG's and STO's, and support the District's position that Student did not
qualify for ESY services. The June 2012 Progress Notes for Transition reading indicate that in
February 2012, Student was reading second grade text and answering concrete comprehension
questions with 90 percent accuracy - clearly satisfying that short term objective. (Ex. S30.)
Additionally, the June 2012 Progress Note indicated Student was reading second grade text with 100
percent comprehension, and at third grade level and answering inferential and concrete questions
with 90 percent accuracy. (Id.) Thus, ALJ Allen's finding that the June Progress Notes failed to
correspond to the November 2011 IEP is simply not supported by the evidence presented. (FO
Finding 32 at 9.)
The court concludes that the ALJ erred in requiring the District to utilize Parents' preferred
method of calculating regression. Therefore, the court finds by a preponderance of evidence that the
IEP team properly considered the 2011-2012 winter break data in making their determination that
Student was not eligible for ESY services in the summer of 2012. Accordingly, the court reverses
the ALJ' s conclusion that the District denied Student a FAPE for failing to provide ESY services in
the summer 2012.
36 - OPINION AND ORDER
D.
Failure to Implement All Accommodations in November 2011 IEP Was Nat Material
1.
standard
The Ninth Circuit has determined that "there is no statutory requirement of perfect adherence
to the IEP ," thus "minor implementation failures" are insufficient to show an IDEA violation. Van
Duyn, 502 F.3d at 821. "A material failure occurs when there is more than a minor discrepancy
between the services provided to a disabled child and those required by the IEP." Id. at 822. The
"materiality standard does not require that the child suffer demonstrable educational harm in order
to prevail. However, the child's educational progress, or lack of it, may be probative of whether
there has been more than a minor shortfall in the services provided." Id.
2.
November 2011 IEP Accommodations
The November 2011 IEP required that Student would receive modified tests and assignments
in all general education classes, that Student could request copies of notes following an adult prompt,
that essay questions would be modified on proficiency tests in all classes, and that test questions
would be read aloud on all proficiency tests in general education classes. (Ex. S9 at 3-4.)
In the Final Order, ALJ Allen found that many of Student's tests and assignments in the
2011-2012 academic year were not modified, that Student only sporadically received notes at best,
and that Student rarely received prompting to request notes. (Final Order at 25.) ALJ Allen
concluded that the discrepancies were "material." (Id.) ALJ Allen relied upon testimony from Ms.
Shearer who indicated that Student was able to complete the work without the accommodations, and
that therefore, they were not required to provide it. (Id) ALJ Allen also concluded that the refusal
to provide the accommodations provided in the IEP resulted in a unilateral IEP change, and thus a
violation.
37-OPINION AND ORDER
On review to this court, the District contends that ALJ Allen's determination is not entitled
to deference because ALJ Allen failed to undertake a materiality analysis, and instead offered
conclusions unsupported by the record. According to the District, Student did not show any
decreased performance demonstrating that the minor shortfall in accommodations and modifications
resulted in material failures to implement the November 2011 IEP. The court agrees.
In the Final Order, although ALJ Allen properly cited controlling case law, he failed to
conduct any analysis as to how any failure to provide notes, testing modifications, or other
accommodations was material. The ALJ did not attempt to discuss how the District's alleged
shortfalls may have impacted Student's progress toward any identified goal in the IEP. Therefore,
ALJ' s reasoning on this point is not careful or thorough, and is not entitled to deference.
Here, with respect to Ms. Taplin's testimony concerning accommodations, the ALJ
mischaracterizes her testimony. As Ms. Taplin testified at the hearing, not every assignment required
modification; if Student was capable of completing the assignment without modification, Student
would be encouraged, or "pushed" to do so independently, as Parents had requested. (Tr. 596.) The
unmodified assignment about which Ms. Taplin testified required Student to complete her name,
what school she attended, as well as identify strengths and accomplishments with blank spaces for
single word responses. (Ex. Sll2.) Ms. Taplin testified that Student was clearly capable of
completing the assignment without modification, and thus none was provided. (Tr. 596-97.)
Additionally, Ms. Taplin further testified that when modifications became necessary for Student,
they were provided. (Tr. at 596-97.) Ms. Taplin further testified that she worked with Student's
American History teacher to provide modified tests. (Tr. 563-64.)
38 - OPINION AND ORDER
Indeed, Jessica McRobert, Student's instructional assistant for American History, testified
that she took notes during class and worked with the teacher to modify tests and assignments. (Tr.
563-64, 651-54.) Charlotte Denis, Student's instructional assistant for Biology, testified that Student
was utilizing a fifth grade biology textbook to track the tenth grade curriculum, and that she worked
with the teacher to modify Student's homework, assignments, and tests for that course. (Tr. 105860.)
Additionally, Mr. Bafaro testified that if a student requiring accommodations or
modifications could complete an assignment or test without either, the accommodations or
modifications would not be provided as a "best practice." (Tr. 723-24.) Furthermore, the record
reflects that Student was given classroom notes and powerpoint slides, and that the notes were being
kept in Student's tutorial class to assist with completing homework. (Ex. Sl9.) On March 8, 2012,
Parent requested via email that the notes be given to Student to bring home in order to study for tests.
(Ex. S 19). At the hearing, Parent testified that after sending the March 8, 2012 email, Student began
receiving notes, but not 100 percent of the time. (Tr. 891-92.) Parent also testified that Student was
not read a Health test aloud on one occasion and in American Studies on one occasion. (Tr. 97 5-76 .)
However, there was no evidence demonstrating that Student was not read tests aloud on a regular
basis. The court notes that the November 2011 IEP does not specify that Student's notes be sent
home for Student to study, only that notes be provided and tests be modified. (Ex. S9 at 2-3.)
The ALJ also made no effort to assess how the District's shortfalls amounted to more than
a minor discrepancy. The District contends that Student received all passing grades in academic year
2011-2012, and received eight credits toward graduation, thus alleged shortfalls amount to minor
discrepancies, and not material failures. (Ex. S104, S27.) To establish a material failure does not
39 - OPINION AND ORDER
require that Student suffer demonstrable educational harm, but here the ALJ made no findings on
materiality and offered instead bare conclusions. In the Final Order, the ALJ does not identify any
goals or objectives toward which Student failed to make progress that could even conceivably be the
result of the District's failure to provide accommodations and modifications on tests and homework
assignments, or failure to provide lecture notes.
The ALJ did not discuss, nor can the court find, any evidence demonstrating that the
District's failure to provide notes, assignments or testing accommodations and modifications was
material. The IEP did not require that the notes be sent home daily, and the evidence showed that
Student was receiving them, but that they were being kept at school. Additionally, the ALJ ignored
testimony from Student's instructional assistants about accommodations and modifications they
provided to Student on a regular basis.
Moreover, Student received a modified "A" in her
Introduction to Horticulture, the one class that Parent asserted Student did not receive notes for the
entire 2012 to 2013 academic year. (Tr. 973-74; Ex. Sl04.) The court finds by a preponderance of
evidence that the District's failure to provide these specific modifications and accommodations with
100 percent accuracy was not material. Therefore, the court concludes the ALJ erred in concluding
that the District denied Student a FAPE for failing to implement the November 2011 and November
2012 IEP's. See Van Duyn, 502 F.3d at 823; L.MH v. Arizona Dep't ofEduc., No. CV-14-02212PHX-JJT, 2016 WL 3910940, at *8 (D. Ariz. July 19, 2016) (finding failure to collect progress data
was not material).
40 - OPINION AND ORDER
II.
Academic Year 2012-2013
A.
Continued Reliance on November 2011 IEP from September 2012 to November 2012
Did Not Result in FAPE
ALJ Allen concluded that the District continued to rely upon the faulty November 2011 IEP
until the November 2012 IEP was implemented in January 2013. In that regard, ALJ Allen
concluded that "the umesolved violations addressed by ALJ Messecar constitute continuing
violations." (Final Order at 14.) As discussed above, to the extent that the District failed to consider
the 2011 Ensroth and Buckendorfreports until November 13, 2012, the District continued to engage
in a procedural violation. However, the court disagrees that the District continued to engage in a
substantive violation. As noted above, the only portion of ALJ Messecar' s decision upheld by this
court and relevant to the present action pertains to Student's management of her anxiety. The record
reveals that in beginning in September 2012, the District offered Student counseling during which
Student worked on managing her anxiety. Student's counseling sessions continued through the
entire period at issue, and in fact, were later deemed by this court as unnecessary. Forest Grove,
2014 WL 2592654, at *37. Additionally, Dr. Arnold's October 2, 2012 independent educational
evaluation opined that testing did not support an anxiety disorder. Based on this preponderance of
evidence, the court concludes that Student was not denied a FAPE in academic year 2012-2013.
Accordingly, the court affirms ALJ Allen's conclusion that the District's procedural violation
continued from September 2012 through November 14, 2012 when it convened an IEP team meeting
to discuss Ensroth and Buckendorf s reports. However, the court reverses ALJ Allen's decision that
the District engaged in a continuing substantive violation from September 2012 through November
13, 2012.
41 - OPINION AND ORDER
B.
Email Communication Protocol Did Not Seriously Infringe Parents' Participation
In the Final Order, ALJ Allen concluded that in academic year 2013-2013, the District
"impermissiblyrestricted and then prohibited Parent's ability to communicate with District personnel
regarding Student's education and health." (Final Order at 25.) As with the 2011-2012 email
communication protocol, the ALJ' s findings and conclusions are neither accurate nor thorough, and
are not entitled to deference. ALJ Allen fails to discuss any facts to support his conclusion that
Parent was prevented from communicating any information about Student's health. Moreover, the
ALJ undertakes no analysis as to how the email protocol differed from the previous year's or how
it seriously infringed of Parent's opportunity to participate in the IEP fo1mation process. Capistrano,
556 F.3d at 909 (holding that procedural inadequacies must significantly restrict parents'
participation to deny FAPE). Therefore, because ALJ Allen's decision on this point is neither careful
nor thorough, it is not entitled to deference.
The record shows that on September 9, 2012, ALJ Messecar issued the decision in DP 11131. On September 21, 2012, Parents were instructed to direct all communications regarding the due
process hearing and ALJ Messecar's decision through the District's counsel. (Exs. S35, S36.)
Between September 24 and October 3, 2012, Parent sent multiple terse and aggressive emails to
District staff, many combining issues concerning day-to-day issues along with the remedies required
by ALJ Messecar. The District's attorney looked to Parent's attorney for assistance with the
situation, but a communication breakdown ensued, and the District blocked Parent's email from its
server on October 3, 2012. (Exs. 36, 37, 39, 42.) On October 24, 2012, the District's attorney
informed Parent's attorney that Parent could contact any of Student's teachers concerning classroom
issues, and Mr. Bafaro with other special education issues. In February 2013, the District's attorney
42 - OPINION AND ORDER
again had concerns about the volume of Parent's emails and instructed Parent to limit her contact
for day-to-day issues to appropriate District staff, and issues relating to IEP changes, curriculum and
their implementation to Mr. Bafaro once per week, who would respond within three days. Thus,
contrary to ALJ Allen's suggestion, Parent's email was not blocked for the entire 2012-2013
academic year.
Also, contrary to ALJ Allen's suggestion, it is clear that Parent continued to communicate
with the District about Student's IEP throughout the November 2012 IEP formulation process. The
District's attorney continued to work with Parent's attorney to gather information pertinent to the
November 2012 IEP beforehand, and drafting present levels in advance of the November 2013
meeting. Indeed, Parents were present at the November 13, 2012 meeting, fully participated in that
meeting, and the team allowed another IEP meeting for Parents to review the newly proposed goals.
Parents and their attorney were present at the November 27, 2012 IEP team meeting, fully
participated, made suggested changes, and some of Parent's concerns were included in the IEP. And,
Parents and their attorney participated in the April 15, 2013 ESY team meeting. Parents attended
the meeting, submitted graphs for the team's consideration, spoke at length at the team meeting, and
followed up via email after the meeting concluded. Based on Parents' input, additional ESY services
were provided in summer 2013. To be sure, Parent had no difficulty advocating for Student despite
the email protocol.
Neither ALJ Allen nor Parents in their briefing to this court identify what specific "health"
info1mation Parent was prevented from providing to the District because ofthe email communication
protocol. The court presumes ALJ Allen and Parents refer to issues in early October 2012 at a time
when Parent's emails were blocked by the District. Having carefully reviewed the record, the court
43 - OPINION AND ORDER
concludes that even assuming arguendo that these incidents could pertain to the IEP formulation
process, Student was not denied a FAPE.
Here, the record shows that on October 9, 2012, Student was crying in class. That morning,
Student met with Ms. Mouw, her counselor, who attempted to engage with Student to discover why
Student was crying; Student denied crying. (Ex. S41 at 1.) Later that day, Ms. Mouwagainmetwith
Student because Ms. Taplin indicated that Student seemed confused. (Ex. S41 at 2.) Student
requested to return to class. The record further reveals that on October 11, 2012, Parent called
Student's teachers to discuss the incidents. (Ex. S42 at at2.) Also, on October 11, 2012, Parent took
Student to Dr. Ensroth for evaluation, and Parent expressed frustration with the lack of
communication from teachers, but acknowledged she was able to reach them by telephone. (Ex.
S46.). On October 15, 2012, Dr. Ensroth wrote a letter indicating that Student was experiencing
some anxiety and confusion and that he was prescribing medication. (Ex. S46.)
The court concludes that based on a preponderance of the evidence, the District's email
communication protocol did not result in a FAPE. As noted above, at all times Parent's access to
school staff by telephone and in person was maintained, and Parent called Student's teachers to
discuss the October incidents. Additionally, on the day of the incident, Student met with her
counselor twice and it is clear that Student's case manager was aware of Student's behavior and
monitored Student throughout the day. The record shows that Dr. Ensroth's evaluation and
recommendations were discussed at the November 27, 2012 IEP team meeting, as were Parent's
concerns about Student's mental health. Dr. Ensroth's recommendations included having staff
monitor Student closely and having a counselor available for Student, actions the District was
already undertaking. Indeed, the November 27, 2012 IEP team meeting minutes reflect that the
44 - OPINION AND ORDER
episode with Student crying was added into Student's present levels. (Ex. S56 at 2.) The team
disagreed with Parent's characterization of Student as "psychotic" and indicated as much in the IEP.
However, the record belies Parent's contention that Student's mental health issues went unaddressed
by the District. The email protocol did not seriously infringe Parent's ability to participate and did
not deny Student a FAPE. "Maximum parental participation is not the standard under the IDEA;
rather, the standard is meaningful participation." Z.F. v. Ripon Unified Sch. Dist., No. 2:11-cv02741-KJM-GGH, 2013 WL 127662, at *8 (E.D. Cal. Jan. 9, 2013) (holding that parents had
meaningful participation in formulation of students IEP fo1mulation). The ALJ' s determination on
this issue is reversed.
C.
District Did Not Deny Parents Opportunity to Participate at April 15, 2013 Team
Meeting by Limiting Agenda
1.
standards
"Parental participation in the IEP and educational placement process is critical to the
organization ofIDEA." Doug C., 720 F .3d at 1043. Procedural inadequacies that seriously infringe
the parents' opportunity to participate in the IEP formulation process result in the denial of a FAPE.
Id. However, harmless procedural errors do not constitute a denial of a FAPE. Capistrano, 5 56 F .3d
at 909.
School districts must provide ESY if the IEP team determines that ESY is necessary for
provision of FAPE. Hellgate, 541 F.3d at 211; 34 C.F.R. § 300.106(a)(2). An IEP adequately
provides a FAPE if it is reasonably calculated to provide a child with a meaningful educational
benefit at the time it was developed. Fresno Unified, 626 F.3d at 432; Grants Pass, 2015 Wl
1951749 at *9.
45 - OPINION AND ORDER
2.
April 15, 2013 Parents' agenda items
In the Final Order, ALJ Allen concluded that the District's limitation of the April 15, 2013
IEP team meeting agenda to ESY eligibility, revision of Student's functional reading goal, and
consideration of any new outside reports denied Parent a meaningful opportunity to participate and
denied Student educational opp01iunities ESY Summer 2013 in the areas of transition reading,
transition writing, and transition math. (Final Order at 30.) ALJ Allen determined that the District's
refusal to consider additional agenda items submitted by Parent was a procedural violation of the
IDEA, and that Parent's rights to meaningful participation extend to all IEP team meetings, not
simply annual IEP reviews. (Final Order at 30.)
The District contends that the April 15, 2013 team meeting was not an annual IEP meeting,
and therefore it legitimately limited the agenda to items not previously decided, or new information
indicating the November 2012 IEP was in need of modification. Parents respond that the IDEA
requires the District to revise an IEP as appropriate to address any lack of progress toward annual
goals or any information provided by parents, citing 20 U.S.C. § 1414(d)(4)(A)(ii). Parent maintains
that she sent a list of agenda items, and the District's failure consider them deprived her of a
meaningful opportunity to participate in the formulation of Student's IEP.
During the November 2012 IEP formulation process, the team decided that an ESY
determination would be considered by April 15, 2013. (Ex. S85 at 22.) On March 13, 2013, Ms.
Shearer sent an email to Parent concerning the ESY IEP agenda and asked whether Parents had any
issues for consideration. (Ex. S69.) Between March 13 and April 15, Parents and various District
staff exchanged numerous emails concerning the ESY agenda and how ESY eligibility will be
measured. (Exs. S70, S71, S76, S77.) Parents proposed twelve agenda items to discuss. (Ex. S73.)
46 - OPINION AND ORDER
Ms. Shearer responded that the April 15 meeting was not intended to be a full IEP review, but simply
to discuss ESY and any other significant issues. On April 10, 2013, the District sent a Prior Written
Notice denying Parents' request for a full IEP review. (Ex. S74.) The Notice provided that the
meeting on April 15, 2013 was to "determine ESY and to consider any significant new information
that has arisen since annual IEP since November." (Ex. S74.)
Parents and their attorney attended the April 15, 2013 meeting and presented a list of
concerns for the team's consideration. (Ex. S79, S84 at 1-2.) At the meeting, the IEP team
discussed Student's functional math skills, community life skills, speech and language goals. (Ex.
S84 at 2-3.) The team also discussed that the work experience data showed regression, and that
Student qualified for ESY work experience goals 2 and 3. (Ex. S84 at 3.) The IEP team noted that
Student met her functional reading goal and a new goal would be drafted. (Ex. S84 at 3.) Parent
inquired about how reading instruction was being delivered because Student no longer had a reading
class. (Ex. S84 at 4.) The team also discussed assisting Student with transportation and working
with Ride Wise. (Ex. S84 at 4-5.) Parent also expressed a desire to have Student receive academic
reading and writing instruction in the next school year. (Ex. S84 at 5.)
On August 20, 2013, Parents sent an email to Ms. Shearer and Mr. Bafaro regarding issues
that Parent raised at the April 14, 2013 meeting, including: lack of supporting documentation for
ESY; focusing on competitive employment for Student; removal of the two paragraphs concerning
Student's learning strategies; Parent's proposed ESY data for reading, writing, math, and SLP;
spelling improvement; work experience to occur in a community setting; changing transition goals
to academic college enrollment; checking the box for Student's behavior impeding the learning of
others because of Student's health and safety and acting "psychotic"; adding social stories to the
47-OPINION AND ORDER
accommodations page; and Parent's request to return Student to academic reading and writing from
functional reading. (Ex. S88 at 1-2.) Parent sent numerous emails following up on issues raised
at the April 15, 2013 meeting, to which the District responded. (Exs. S89-S96.) After reviewing
data submitted by Parent at the meeting, on May 31, 2013, the District offered Student ESY in
reading and speech/language, in addition to work experience. (Ex. S96.)
The court finds that ALJ Allen's decision erroneously concludes that the District failed to
consider the regression and recoupment data presented by Parents. (Final Order at 30.) At the
meeting, the District found Student ESY eligible in only the area of work experience. However, the
record clearly shows that following the meeting, based on the District's consideration of Parents'
documented data, the District offered ESY services to Student in the areas of reading and
speech/language. Accordingly, to the extent ALJ Allen premised a procedural violation on the
District's lack of consideration of Parents' regression and recoupment data, the ALJ's decision is
reversed.
Moreover, the District's meeting minutes and audiotape confirm that Parents' concerns
identified on the proposed agenda were considered. Parents and their attorney attended the meeting;
the District responded to numerous emails on Parents' requested topics. While Parents may not have
agreed with the answers they received, the District has persuasively demonstrated that Parents were
not denied an opportunity to meaningfully participate in the April 15, 2013 IEP meeting.
Capistrano, 556 F.3d at 909.
D.
Compensatory Education as Counseling Was Not Substantive Violation
As part of ALJ Messecar' s remedies, the District was required to provide Student 60 minutes
of counseling per week as compensatory education. In accordance with ALJ Messecar's decision,
48 - OPINION AND ORDER
on September 19, 2012, the District began providing Student counseling on Tuesdays from 8:45 to
9:45 a.m., which was later switched to 12:00 p.m. to 1:00 p.m. in January 2013. (Exs. S24, Dl0 at
1, 16.) Parents objected to the District providing compensatory education during Student's regularly
scheduled academic day.
In the Final Order, ALJ Allen concluded that by scheduling Student's compensatory
education in place of general or special education classes resulted in denial of F APE. The ALJ
concluded that by providing compensatory education during Student's regular day, Student was
prevented from making progress in her other courses. "[T]he District's unorthodox provision of
compensatory education denied Student a F APE with regard to the course hours missed." (Final
Order at 30.)
On appeal to this court, the District argues that ALJ Allen erred by failing to analyze any
evidence from which to conclude that by providing the required compensatory education during
school hours, the District interfered with Student's progress. Student offers no response.
As the District correctly highlights, this court reversed ALJ Messecar' s decision that required
it to provide 60 minutes of compensatory education in the form of counseling each week. See Forest
Grove, 2014 WL 2592654, at *37 (noting that there was no evidence that extensive counseling was
warranted). It would be improper to now penalize the District for abiding by ALJ Messecar' s order.
Furthermore, the court concludes that ALJ Allen's findings of fact on this issue are neither
thorough nor accurate, and thus are not entitled to deference. The ALJ cites no legal authority to
support this particular conclusion. ALJ Allen's Final Order provides no discussion of what classes
Student missed, how often, or what real, measurable impact Student's absence from either her
49 - OPINION AND ORDER
Tutorial class or Treble Choir once a week to attend her due process-ordered counseling had on her
academic progress. Accordingly, the court reverses ALJ Allen's decision in this regard.
E.
Removal of Two Paragraphs in the November 2012 IEP
In the Final Order, ALJ Allen found that the District impermissibly removed information
from the November 2012 IEP that pertained to Student's learning strategies. (Final Order at 27.)
ALJ Allen found that Parents were denied a meaningful opportunity to participate in Student's
education when the following two paragraphs that were previously contained in the November 2011
IEP were eliminated from the November 2012 IEP without prior written notice:
Due to challenge that [Student] has processing auditory information; it is very helpful
for information presented in all classes [to] be as visual as possible. Breaking down
large assignments into smaller steps with due date for each step written on a calendar
is also helpful.
To help [Student] better understand reading materials in all classes, it is best to check
for understanding often through a sequent of simple comprehension questions.
Waiting until the end of a section of reading to check for understanding is too long.
(Final Order at 26; Ex, S9 at 8, Ex. S57 at 6.)4 ALJ Allen determined that the District failed to
provide a rationale as to why these learning strategies were removed without notice, and failed to
reinsert them when requested to do so by Parents. The ALJ concluded that the District's "unilateral
removal" of this information denied Parents a meaningful opportunity to participate in the IEP
formulation and denied Student a FAPE. (Final Order at 27.)
Here, the District argues that Parents fully participated in the development and formulation
of the November 2012 IEP. The District highlights that Parents and their attorney were provided
The comt observes that these two "learning strategies" were discussed as "teaching
techniques" in its prior Opinion and Order. Forest Grove, 2014 WL 2592654, at *24-26. In the
Opinion and Order, the court determined that ALJ Messecar erred in requiring the District to adopt
and include these teaching techniques in all of Student's classes. Id. at 26.
4
50 - OPINION AND ORDER
with a draft IEP prior the November 13, 2012 IEP team meeting, attended the meeting, and discussed
Student's present levels - the portion of the IEP from which the two paragraphs were removed. (Tr.
459-60.) Additionally, the District asserts that Parents and their attorney were present at the
continued November 27, 2012 IEP team meeting and did not raise an objection to the removal of
the two paragraphs at that time and therefore, were not denied a meaningful opportunity to
participate. (Tr. 461.)
Parents respond that they objected to the removal of the two paragraphs and requested that
the paragraphs be reinserted soon after the November 27, 2012 team meeting. According to Parents,
the District was obligated to inform them of the specific removal beforehand, and that after Parents
objected, the District was required to issue a PWN for refusing to reinsert the two paragraphs into
the IEP.
The court concludes that the ALJ' s findings and conclusions on this point are not careful or
thorough, and hold the District to an arbitrarily high standard. The ALJ cites no authority for the
proposition that Parents, who are represented by counsel, need to be informed of each specific
change to an IEP. See MA. v. Jersey City Ed. of Educ., 592 F. App'x 124, 129 (3d Cir. 2014)
(holding that prior written notice adequately informed parents of action, and did not require specific
description of the placement, such as specific classroom or school).
Here, the evidence before the court shows that prior to the November 2012 IEP meeting,
Parents' attorney was provided with a draft IEP, and was informed that the draft would include
changes to the present levels. (Ex. S48 at 1.) As the District correctly highlights, Parents and their
attorney attended the November 13, 2012 IEP team meeting and acknowledged that they had an
opportunity to review the draft IEP prior to the meeting. (Ex. S51 at 1-2.) Parents and their attorney
51 - OPINION AND ORDER
attended the second IEP team meeting on November 27, 2012, at which Student's present levels
were again discussed. (Ex. S56 at 2.) At the hearing, Ms. Shearer explained that she drafted the
November 2012 IEP, provided a copy to Parents and their attorney, and that Parents did not voice
a concern or discuss the elimination of the two paragraphs from Student's present levels at either IEP
team meeting. (Tr. 459-61.) At some point when preparing for the April 15, 2013 ESY team
meeting, Parents raised a concern that the two paragraphs were eliminated from the November 2012
IEP. (Ex. S79.)
The ALJ did not cite any controlling legal authority requiring the District to notify Parents
about the proposed amendment to eliminate Student's learning strategies, but instead appeared to
rely upon ALJ Messecar' s ruling. The District informed Parents' attorney that adjustments to present
levels would be included in the draft IEP, and provided a draft IEP in advance of two meetings where
those present levels were discussed. Although the court agrees that more granular information about
specific changes can be helpful, such level of detail is not required under the regulatory scheme. See
20 U.S. C. § 14 l 5(b)(3) (providing that PWN is required when educational agency proposes a change
to "the identification, evaluation, or educational placement of the child"); 20 U.S.C. § 1415(c)
(describing contents of PWN); OAR 581-015-2310 (providing PWN include a description of the
action proposed).
Moreover, even if the District should have provided more specific notice that it was
proposing to eliminate the particular learning strategies from Student's IEP present levels, that
procedural violation did not result in denial ofF APE. Target Range, 960 F .2d at 1484 (holding that
not all procedural inadequacies result in lost educational opportunities for the child or seriously
infringe the parents opportunity to participate); see also Jersey City, 592 F. App'x at 129 (finding
52 - OPINION AND ORDER
that absent actual impairment to parental participation in educational decisions, deficient notice not
actionable). As this court detailed in its earlier Opinion and Order concerning the November 2011
IEP, these two paragraphs were not required to be included in the November 2011 IEP in the first
instance. Forest Grove, 2014 WL 25 92654, at *26 (reversing ALJ' s decision that requiring teachers
to utilize "Larsen method" described in the two paragraphs to instruct Student).
Courts have repeatedly held that an IEP need not maximize a student's educational benefit.
Rowley, 458 U.S. at 206-07; Endrew, 137 S. Ct. at 999 ("Any review of anIEP must appreciate that
the question is whether the IEP is reasonable, not whether the court regards it as ideal.") As one
court aptly described, the IDEA guarantees only "an appropriate education, not one that provides
everything that might be thought desirable by loving parents." Walczakv. Florida Union Free Sch.
Dist., 142 F.3d 119, 132 (2d Cir. 1998) (internal citations and quotations omitted). The court will
not penalize the District for removing the two paragraphs from the November 2012 IEP in this
instance. Accordingly, the court concludes that the elimination of the two paragraphs identified
above did not result in a denial of PAPE. The ALJ's decision in this regard is reversed.
Additionally, the court rejects Parents' contention that the District failed to issue a prior
written notice addressing its refusal to add back the two paragraphs in the November 2012 IEP. As
revealed in the emails sun-ounding the April 15, 2013 IEP team meeting, the meeting minutes, and
meeting audiotape, Parents identified the elimination of the two paragraphs as an issue, along with
numerous other topics it wanted to discuss at the April 2013 meeting. (Exs. S73, S79.) The District
responded that not all of Parents' issues would be discussed at the meeting because the meeting was
aimed at addressing ESY for summer 2013. (Exs. S73.) Parents requested and received a prior
written notice about the District's refusal to hold a full IEP review to discuss all of their concerns
53 - OPINION AND ORDER
at the April 15, 2013 meeting. (Exs. S74, S77.) Accordingly, the court concludes that contrary to
Parents' suggestion, the District did not commit a procedural violation in this instance.
F.
The District's Failure to Address Student's Behavioral Needs in November 2012 IEP
Did Not Deny Parents Meaning/it! Opportunity to Participate
In the Final Order, ALJ Allen determined that the District refused to include information in
the November 2012 IEP that Student's behavior impacted Student's and others' ability to learn. ALJ
Allen concluded that the District's omission of information that Student is incapable of working
without distracting self or others denied Parents the opportunity to participate in the IEP and denied
Student a FAPE. In making this finding, ALJ Allen relied upon a Social Security Disability checkthe-box Teacher Questionnaire completed by Ms. Taplin indicating that Student cannot work without
distracting herself or others. (Final Order at 29, Ex. S72 at 9.) In the narrative portion of the
questionnaire, Ms. Taplin provided that Student is "constantly distracted" by her desire to talk to
instructional assistants and can only stay focused for ten seconds at a time. (Ex. S72 at 9.) ALJ
Allen concluded that the District denied consideration of the exhibit when formulating the November
2012 IEP, and thus, denied Student a FAPE because it failed to appropriately address Student's
behavioral issues. (Final Order at 29.)
The ALJ' s Final Order is neither careful nor thorough on this point. The cases upon which
ALJ Allen relies are not on point and provide no basis for concluding Ms. Taplin's questionnaire
should be applied retrospectively to the November 2012 IEP. As the District correctly indicates, the
Social Security Disability questionnaire completed by Ms. Taplin is dated April 18, 2013, and
therefore, the questionnaire was not in existence at the time of the November 2012 IEP team
meetings. The measure and adequacy of an IEP can be determined only as of the time it is offered
to the Student, not at a later time. See Anchorage, 689 F.3d at 1047 ("We are mindful that we must
54 - OPINION AND ORDER
not critique an IEP with the benefit of hindsight - instead, we evaluate whether the goals and
methods were reasonably calculated to ensure that the child would receive educational benefits at
the time of implementation."); Adams v. State of Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999)
(recognizing that IEP's must be viewed as a snapshot, not a retrospective of what information was
objectively known at the time the IEP was drafted); Grants Pass, 2015 WL 1951749, at 2 (same).
Therefore, to the extent that ALJ Allen found the District's failure to consider Ms. Taplin's
questionnaire at the time the November 2012 IEP was formulated, the decision is reversed.
To the extent that ALJ Allen determined that the November 2012 IEP failed to consider
Student's underlying behavior described by Ms. Taplin and resulted in a substantive violation, the
court again concludes that the ALJ' s finding is neither careful nor thorough and is entitled to little
deference for several reasons.
First, contrary to Student's argument, the record does not support ALJ Allen's conclusion
that the District omitted "this information" from the November 2012 IEP over the Parent's objection.
(Final Order at 29.) Ms. Taplin' s April 8, 2013 questionnaire did not exist at the time the November
2012 IEP team meeting occurred. And, the record does not reveal any language similar to that
described in Ms. Taplin's questionnaire requested by Parents relating to Student's disabilities
impacting her ability to learn in the November 2012 IEP fonnation process. (Exs. S51, S52, S56.)
Second, to the extent that Parent requested information be included in the November 2012
IEP concerning Student's "behavior," it related to Student's anxiety and confusion, not
inattentiveness or distractedness as reflected in Ms. Taplin's 2013 Social Security questionnaire.
(Ex. S.51 at 3.) As the November 13, 2012 meeting minutes reflect, the IEP team discussed
Student's "episodes at school" and whether they should be included in the IEP. (Id.) The team also
55 - OPINION AND ORDER
discussed Dr. Ensroth's report and recommendations and whether those issues should be contained
in the present levels. (Id.) Again, at the November 27, 2012 IEP team meeting, Parent described
Student as upset, and "psychotic," a description not endorsed by the remainder of the team. (Ex. S 56
at 2.) The IEP team included Parent's description of about Student's behavior in the "current parent
concerns" portion of Student's present levels portion of the IEP. (Ex. S56.) Contrary to ALJ Allen's
conclusion, there simply is no evidence that Parents were denied an opportunity to participate in the
formulation of the November 2012 IEP that is somehow connected to Ms. Taplin's April 2013
questionnaire answer. Thus, the ALJ's conclusion that Parents were denied an opportunity to
meaningfully participate in the November 2012 IEP formation process concerning Student's
"behavior" based on information in Ms. Taplin's questionnaire is reversed.
Third, in the April 2013 Social Security questionnaire, Ms. Taplin described that Student was
distracted and needed to be redirected frequently. The court observes that this behavior is well
documented and that Student was identified as IDEA eligible for ADHD beginning in 2005. (Ex.
Dl at 1-4.); see also Forest Grove, 2014 WL 2592654, at* 1 (discussing 2008 psychological report
diagnosing student with ADHD). As noted in the March 28, 2011 evaluation by Amanda Morris,
Psy.D., she recommended that Student's working environment be arranged to limit distractions, such
as carefully choosing Student's classroom placement, and removing visual or auditory distractions.
(Ex. Dl at 4.) The court observes that the November 2011 and November 2012 IEPs contain Ms.
Morris's recommended work environment restrictions, including second row seating, a voice
recorder, extended time to complete tests and assignments, alternate location, and copies of notes.
(Exs. S9 at 2-4, S57 at 19-21.)
56 - OPINION AND ORDER
In Parents' First Amended Complaint in DP 13-104, they alleged that the District denied
them the opportunity to "meaningfully participate in Student's education" by refusing to indicate that
"Student's behavior impedes her leaning or the learning of others" at the April 15, 2013 meeting.
(Answer, Ex. 1 at 9, ECF No. 3-1 at 9.) Having carefully reviewed the entire record, including the
audiotape of the April 15, 2013 meeting, the court concludes that Ms. Taplin's Social Security
teacher questionnaire was not presented at April 15, 2013 meeting. To the extent that ALJ
concluded that the District failed to consider Ms. Taplin's questionnaire at the April 15, 2013 team
meeting depriving Parents of the opportunity to meaningfully participate, the court reverses the
ALJ' s decision.
In summary, the court concludes, based on a preponderance of the evidence, that Ms.
Taplin' s April 2013 Social Security questionnaire answer- a wholly separate administrative process
and purpose - should not be applied retrospectively to conclude that Student was denied a FAPE.
The ALJ' s decision on this point is reversed.
III.
Remedies
ALJ Allen ordered the District to provide Student a number remedies tied to ALJ Messecar' s
remedies order in DP 11-131, including that the District employ the "learning techniques" effective
for Student, provide personnel training in IEP development and IEP evaluations. (Final Order at 32.)
Additionally, based on the District's violations in DP 13-104, ALJ Allen ordered two remedies:
The District shall convene an IEP team meeting facilitated by a neutral third party
facilitator mutually selected by the parties within 21 calendar days of this issuance
of this order. The District must provide sufficient time to address the concerns
presented by Parent so long as those requirements pertain to Student's educational
program.
The District shall provide compensatory education, outside of Student's regular
academic schedule, in the amount of two hours each of direct transitional math and
57 - OPINION AND ORDER
transitional reading instruction for every week of instruction Student should have
received between December 7, 2011 and August 14, 2013.
(Final Order at 33.)
If an IDEA violation results in denial of a FAPE, a district court has discretion to "grant such
relief as the court determines is appropriate." 20 U.S.C. § 14 l 5(i)(2)(C)(iii). Courts have significant
discretion in crafting remedies and may award compensatory education that aims at placing disabled
children in the same position they would occupied but for the school district's violations. Park ex
rel. Park v. Anaheim Union Sch. Dist., 464 F.3d 1025, 1033 (9th Cir. 2006); Reid v. Dist. of
Columbia, 401 F.3d 516,518 (Fed. Cir. 2005) (discussing court's discretion to fashion appropriate
remedies under IDEA, including compensatory education).
This court reversed many of ALJ Messecar's findings and conclusions, and consequently,
vacated all but one aspect of ALJ Messecar's ordered remedies. Forest Grove, 2014 WL 2592654
at *37-38. In that regard, the court vacated ALJ Messecar's remedies that Student's preferred
"learning techniques" must be included in Student's IEP, that District personnel receive training on
proper IDEA procedures and IEP development, and that the District provide compensatory
instruction in transitional math and transitional reading instruction. Id. at 37. Accordingly, the court
vacates ALJ Allen's remedies award premised on ALJ Messecar's decision that this court has
previously vacated as inappropriate.
The court also vacates ALJ Allen's remedy that the ALJ convene an IEP team meeting as
moot. According to the District, such a meeting already has occurred. The court also vacates ALJ
Allen's award of compensatory transitional math and transitional reading instruction. In this action,
the court did not find that the District's instruction in transitional math and reading was
58 - OPINION AND ORDER
inappropriate, therefore, ALJ Allen's award of compensatory instruction in those subjects is
unwarranted.
As relevant to this case, this court affirmed ALJ Messecar' s decision concerning Student's
anxiety. Forest Grove, 2014 WL 2592654, at *35. The court determined that a remedy was
warranted to with respect to Student's anxiety, but the existing evidence was conflicting and limited,
and the court was unable to "craft an appropriate remedy." Id. at 38. Thus, the court ordered the
District to provide Student "an independent anxiety evaluation," and after it was completed, to
convene an IEP meeting and draft a new IEP that "appropriately addresses Student's anxiety." Id.
In the present action, the court affirmed ALJ Allen's determination that the District engaged
in continuing violations from December 6, 2011 through the end of the academic year in June 2012
for failing to address Student's anxiety. The evidence before the court shows that the District began
offering counseling for Student's anxiety on September 19, 2012 continuing through the period at
issue. (Exs. Dl0, S41, Sl05.) Additionally, the record reveals that an educational evaluation of
Student's anxiety occurred on October 2, 2012. (Ex. S38 at 1.) As discussed above, Dr. Arnold
opined that her testing did not support a primary anxiety disorder. (Id. at 3.) Notably, in DP 13-104,
Parents did not request any remedies with respect to Student's anxiety before ALJ Allen or in their
briefing to this court. Therefore, the court finds that based on a preponderance of evidence, an award
of remedies of any kind for the District's continuing violations due to its failure to address Student's
anxiety is not appropriate, and is rendered moot by the District's previous remedial actions.
In summary, ALJ Allen's award of remedies is vacated.
59 - OPINION AND ORDER
Conclusion
Based on the foregoing, the court AFFIRMS in part and REVERSES in part the decision of
ALJ Allen and concludes the following: (1) the District denied Parents' the opportunity to
meaningfully participate in Student's education from December 6, 2011 to the end of academic year
2012 by continuing to rely on the faulty November 2011 IEP; and (2) the District denied Student a
FAPE by failing to treat Student's anxiety and self-management from December 6, 2011 to the end
of academic year 2012. The court rules in favor of the District on all remaining claims. An award
of remedies is unwarranted and/or is moot.
IT IS SO ORDERED.
DATED thiti?..Ztal ofNOVEMBER, 2018.
V.ACOSTA
60 - OPINION AND ORDER
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