Teters v. Peoria Unified School District ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Shawn Teters, et al., ) No. CV-19-05038-PHX-SPL ) 9 ) 10 Plaintiffs, ) ORDER vs. ) ) 11 ) Peoria Unified School District, ) 12 ) 13 Defendant. ) ) 14 ) 15 At issue is an administrative law judge’s denial of Plaintiffs’ Due Process Complaint 16 under the Individuals with Disabilities Education Act (IDEA), 20 USC § 1400. (Doc. 4). 17 Plaintiffs filed a Complaint with this Court on behalf of themselves (hereinafter “Parents”) 18 as well as their minor son, P.T. (hereinafter “Student”) seeking judicial review of that 19 denial. (Doc. 1). The Court now considers Plaintiffs’ Opening Brief (Doc. 20), Defendant 20 Peoria Unified School District’s Response/Answering Brief (Doc. 21), and Plaintiffs’ 21 Reply Brief (Doc. 25). The Court finds this matter appropriate for decision without oral 22 argument. See LRCiv 7.2(f). 23 I. BACKGROUND 24 On November 14, 2018, Plaintiffs first filed a Due Process Complaint with the 25 Arizona Department of Education (ADE). (Doc. 1 at ¶ 19). Plaintiffs alleged that Defendant 26 failed to provide a free appropriate public education (FAPE) to Student—who suffers from 27 behavioral and learning disabilities—under the IDEA. (Doc. 1 at ¶ 19). Specifically, 28 Plaintiffs challenged Student’s “Individualized Educational Program (IEP) and 1 amendments adopted by Respondent School District,” and alleged “predetermination 2 regarding placement, a failure to collect data, a failure to conduct a Functional Behavioral 3 Analysis (FBA), and a failure to develop a Behavior Intervention Plan (BIP).” (Doc. 4 at 2). 4 As a result of these alleged violations, Parents unilaterally placed Student in a private 5 special education school, AZ Aspire. (Doc. 1 at ¶ 18). Plaintiffs requested that Defendant 6 pay tuition and related expenses for Student to attend AZ Aspire, as well as attorneys’ fees 7 and costs. (Doc. 1 at 10). 8 The ADE referred Plaintiffs’ Due Process Complaint to the Arizona Office of 9 Administrative Hearings for a hearing before an administrative law judge (“ALJ”). (Doc. 10 1 at ¶ 21). ALJ Tammy L. Eigenheer held a hearing on the Complaint over a three-day 11 period—on February 7, 2018, February 8, 2018, and February 22, 2018—and issued a 12 decision on July 30, 2019 denying the Complaint. (Doc. 4 at 2-3, 28). 13 On February 7, 2020, Plaintiffs filed a Complaint in this Court requesting a reversal 14 of the ALJ decision. (Doc. 1). In their Opening Brief, Plaintiffs allege the ALJ erred by 15 concluding that Student’s IEPs and subsequent amendments to it were reasonably 16 calculated to provide Student a meaningful educational opportunity. (Doc. 20 at 11). 17 Plaintiffs request that this Court find that AZ Aspire is an appropriate placement and again 18 seek tuition and attorneys’ fees. (Doc. 20 at 28). 19 In this appeal, Plaintiffs allege there are various errors in the ALJ’s decision such 20 that the decision is not entitled to deference. Specifically, Plaintiffs argue the ALJ’s 21 decision “ignores key documentary and testimonial evidence, is inherently inconsistent and 22 fails to apply relevant authority.” (Doc. 20 at 13). Plaintiffs argue that the decision 23 “erroneously ignore[s],” among other things, evidence of Student’s lack of progress 24 following the implementation of his IEPs and evidence that the IEP Teams did not 25 sufficiently consider Student’s inability to function on a large campus. (Doc. 20 at 14-16). 26 Finally, Plaintiffs argue the ALJ “ignor[ed] the now well-established standard that mere de 27 minimis progress is tantamount to no educational benefit and thus a denial of FAPE.” 28 (Doc. 20 at 13-14). 1 II. LEGAL STANDARDS 2 a. The IDEA 3 The IDEA requires that state educational agencies receiving federal funds provide 4 special education services for children with qualifying disabilities. See 20 U.S.C. 5 § 1400(d)(1)(A).1 The IDEA requires that public school districts provide qualifying 6 students a “basic floor of opportunity”; it does not require that the school maximize each 7 child’s potential. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 8 176, 198–204 (1982); accord J.W. v. Fresno Unified Sch. Dist., 626 F.3d 431, 439 (9th Cir. 9 2010). A child receives a FAPE if the instruction “(1) addresses his unique needs, (2) 10 provides adequate support services so he can take advantage of the educational 11 opportunities and (3) is in accord with the [IEP].” Park, ex rel. Park v. Anaheim Union 12 High Sch. Dist., 464 F.3d 1025, 1033 (9th Cir. 2006) (citing Capistrano Unified Sch. 13 Dist. v. Wartenberg, 59 F.3d 884, 893 (9th Cir. 1995)); see also 20 U.S.C. § 1401(9). 14 Once it is determined that a child is eligible for special education, a public school 15 district must formulate and implement an IEP, which informs how the child will be 16 educated in light of his particular needs that result from his disability. See 20 U.S.C. § 17 1414. A student’s IEP must be “reasonably calculated to enable the child to receive 18 educational benefits.” Rowley, 458 U.S. at 207. Under the IDEA, school districts are 19 required to construct an IEP Team comprised of various school personnel as well as the 20 student’s parents to develop the IEP. 20 U.S.C. § 1414(d)(1)(B). Within a student’s IEP 21 are annual goals. Id. § 1414(d)(1)(A)(i)(I)(cc). The IEP Team must consider the strengths 22 of the child, concerns of the parents, evaluation results, and the academic, developmental, 23 and functional needs of the child. Id. § 1414(d)(3)(A). Additionally, the IDEA does not 24 require placement in a particular school, but the IEP Team must consider alternative 25 placements. See 34 C.F.R. § 300.116(d). 26 1 Student has been diagnosed with conditions including “depression, anxiety, insomnia, 27 migraines, executive functioning disorder, neurocognitive disorder due to prenatal toxin exposure, tic disorder, and reactive attachment disorder.” (Doc. 4 at 3). The parties do not 28 dispute Student’s eligibility for special education and services under the IDEA. 1 b. Standard of Review 2 Under IDEA, an aggrieved party may bring a civil action in federal district court 3 after receiving the final decision of an ALJ. See 20 U.S.C. § 1415(i)(2)(A). The party 4 challenging the ruling bears the burden of proving the ALJ’s decision was not met by a 5 preponderance of the evidence. Clyde K. v. Puyallup Sch. Dist., 35 F.3d 1396, 1399 (9th 6 Cir. 1994), superseded on other grounds as recognized in L.M. v. Capistrano Unified Sch. 7 Dist., 556 F.3d 900, 910 (9th Cir. 2009). The district court “shall receive the records of the 8 administrative proceedings,” “shall hear additional evidence at the request of a party,” and 9 “basing its decision on the preponderance of the evidence, shall grant such relief as the 10 court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C). 11 The Court reviews de novo the question whether a school district’s proposed IEP 12 provided a FAPE but reviews the ALJ’s findings of fact only for clear error. Timothy O. v. 13 Paso Robles Unified Sch. Dist., 822 F.3d 1105, 1118 (9th Cir. 2016). Mixed questions of 14 law and fact are reviewed de novo, unless the question is primarily factual. Gregory K. v. 15 Longview Sch. Dist., 811 F.2d 1307, 1310 (9th Cir. 1987). However, courts must not 16 “substitute their own notions of sound educational policy for those of the school authorities 17 which they review.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 18 458 U.S. 176, 206 (1982). 19 It is a matter of district court discretion to decide the degree of deference to give the 20 ALJ’s determination. Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1472 (9th Cir. 1993). 21 “[T]he fact-intensive nature of a special education eligibility determination coupled with 22 considerations of judicial economy render a more deferential approach appropriate.” 23 Hood v. Encinitas Union Sch. Dist., 486 F.3d 1099, 1104 n.4 (9th Cir.2007). The Court 24 gives particular deference to “thorough and careful” administrative findings. R.B., ex rel. 25 F.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 937 (9th Cir.2007) (internal quotation 26 marks and citation omitted). 27 /// 28 /// 1 III. ANALYSIS 2 a. Deference 3 The ALJ Decision is a twenty-eight-page order setting forth the witnesses, evidence, 4 and issues at the hearing along with detailed findings of fact. (Doc. 4). In their Opening 5 Brief, Plaintiffs list “critical evidence” which it alleges the ALJ “erroneously ignored.” 6 (Doc. 20 at 14-16). However, most of the evidence listed was in fact explicitly addressed 7 in the ALJ’s Decision.2 Furthermore, the ALJ states she considered the entire record, 8 including all the testimony and every exhibit, even if not specifically addressed in the 9 Decision. (Doc. 4 at 5, n.6). That the Plaintiffs disagree with the ALJ’s ultimate 10 conclusions regarding such evidence is not a reason for this Court to accord the Decision 11 less deference. Because the Court finds the ALJ was thorough and careful in her findings, 12 the Court concludes they are entitled to significant weight. This Court will consider the 13 issues in the order that Plaintiffs briefed them. 14 b. February 2018 IEP 15 Plaintiffs first argue the ALJ erred in concluding that Student’s February IEP was 16 reasonably calculated to provide Student a FAPE. (Doc. 20 at 16). Plaintiffs set forth three 17 arguments: (1) the ALJ erred in concluding the IEP provided a FAPE because there was 18 “no substantive change” from the previous IEP; (2) the ALJ applied the wrong standard 19 when evaluating Student’s progress under the IEP; and (3) the ALJ erroneously ignored 20 the Supreme Court mandate that school districts must revisit an IEP if expected progress 21 is not occurring. (Doc. 20 at 16-21). 22 i. Facts 23 Student began attending Defendant’s school district in 2011, when Student was in 24 the second grade. (Doc. 4 at 4). Due to Student’s aggression and self-harming behavior, 25 2 For example, Plaintiffs argue the ALJ erroneously ignored “Student’s abysmal performance following the February [IEP]” as well as “Student’s continued avoidance of 26 classes following the February 2018 IEP.” (Doc. 20 at 14). However, the ALJ specifically considered this evidence in her Decision. (Doc. 4 at 9, 22) (“Following the February 28, 27 2018 IEP Team meeting, . . . Student had failed both Algebra 1 and P.E. Further, Student made limited progress on his goals. . . . Student continued to struggle going to class and/or 28 engaging in class once on campus.”). 1 Student was placed in a self-contained behavioral support program, but returned to his 2 home school in sixth grade. (Doc. 4 at 4-5). To prepare for starting high school, Student’s 3 IEP Team developed a “transition IEP” in March of 2017. (Doc. 4 at 5). In January of 2018, 4 halfway through Student’s freshman year, Defendant convened a “Review of Existing Data 5 (RED)/Multi-disciplinary Evaluation Team (MET)” meeting to discuss Student’s progress 6 under the transition IEP. (Doc. 4 at 6). In February of 2018, the IEP Team had their annual 7 meeting to discuss amending Student’s IEP in response to the data collected regarding 8 Student’s progress. (Doc. 4 at 7). At the time of the annual meeting, Student was failing 9 most of his classes. (Doc. 4 at 7). 10 To address Student’s grades, the February 2018 IEP included the following math, 11 social emotional, and general academic goals as related to the previous IEP: 12 (i) Increase Student’s math word problem solving from 20% to 50% accuracy; 13 (ii) Increase Student’s self-advocacy skills by meeting with a case manager 14 and/or support staff at least weekly; and 15 (iii) Increase Student’s coping skills by working with staff to identify and develop 16 a plan to address challenges that interfere with his motivation and get him to 17 attend and perform at school consistently. 18 (Doc. 4 at 7-8). 19 Additionally, Student was feeling “emotionally overwhelmed” with his schoolwork, 20 causing him to avoid school altogether and express a desire to quit. (Doc. 4 at 8). To address 21 these concerns, and to help meet Student’s goals, the following new procedures and 22 accommodations were implemented: 23 (i) Reduce Student’s schedule from a full-time course load of four classes to a 24 part-time course load of two classes; 25 (ii) Provide Student with 60 minutes per month of specialized instruction in math 26 problem solving, 90 minutes per quarter in Behavioral Support with a 27 psychologist (same as previous year), and 120 minutes per month of 28 counseling by the behavioral health support system (an increase from 90 the 1 previous year); 2 (iii) Break tests/quizzes into sections to avoid overwhelming Student; 3 (iv) Reduce assignments/tests when Student is frustrated to focus on mastery of 4 concepts only; 5 (v) Have Student check in with staff to organize his work in a folder system; 6 (vi) Positively reinforce Student with positive comments and actions; and 7 (vii) Grant Student access to resource lab for small group setting for all 8 tests/assignments. 9 (Doc. 4 at 8-9), (Doc. 20 at 3). 10 ii. ALJ Decision 11 The ALJ found that, following the February IEP, Student’s attendance “vastly 12 improved.” (Doc. 4 at 9). However, the ALJ acknowledged that at the close of the school 13 year Student had failed the two classes he was taking and had made limited progress on his 14 goals. (Doc. 4 at 9). Nonetheless, the ALJ held that the February IEP provided Student a 15 FAPE because it was reasonably calculated to, and did in fact, reduce Student’s anxiety 16 such that he could attend school more, at least initially. (Doc. 4 at 23-24). 17 Specifically, the ALJ found that “the decision to reduce Student’s class load in the 18 short term was an appropriate response” because, since Student “could not access the 19 general education curriculum” without attending school, “[g]etting Student to attend school 20 was the most significant and pressing issue at the time of the February 2018 IEP.” 21 (Doc. 4 at 24). Thus, the ALJ reasoned that once Student improved on his attendance “the 22 IEP Team would amend the IEP to add goals that the Student could then work towards.” 23 (Doc. 4 at 24). Finally, the ALJ found that Student’s minimal progress following the IEP 24 does not mean he was deprived a FAPE because “schools will not be found to have failed 25 to provide FAPE because a student made only de minimis progress under an IEP. . . . [T]he 26 question to be considered is whether the goals, as written, were appropriately ambitious in 27 light of the student’s unique circumstances.” (Doc. 4 at 24) (citing Rowley, 458 U.S. at 28 192; Van Duyn v. Baker School District 5J, 502 F.3d 811, 815 (9th Cir. 2007)). In 1 conclusion, the ALJ held that Plaintiffs “failed to establish that the February 2018 IEP was 2 not reasonably calculated to provide Student a meaningful educational opportunity.” (Doc. 3 4 at 24). 4 iii. Analysis 5 At the outset, this Court rejects Plaintiffs’ argument that the ALJ erroneously 6 applied the Rowley “de minimis” standard. Plaintiffs assert that Student’s de minimis 7 progress (i.e., initially attending school more often but then continuing to have difficulty 8 attending and engaging in class) is not sufficient to support a finding that the IEP provided 9 a FAPE. (Doc. 20 at 18-19). Plaintiffs assert that the more recent Supreme Court case, 10 Endrew F. v. Douglas Cty. Sch. Dist., 137 S. Ct. 988 (2017), heightened the standard in 11 Rowley and requires that an IEP provide “more than trivial or minor educational benefit.” 12 (Doc. 20 at 18). Plaintiff’s argument, however, is misplaced. 13 In Rowley, the Supreme Court held that if an IEP is “reasonably calculated to enable 14 the child to receive educational benefits,” a FAPE has been provided. Rowley, 158 U.S. at 15 207. Nearly forty years later in Endrew F., the Supreme Court revisited the standard for a 16 FAPE. Endrew F., 137 S. Ct. 988. In reviewing Rowley and relevant statutory language, 17 the Court held that “[t]o meet its substantive obligation under the IDEA, a school must 18 offer an IEP reasonably calculated to enable a child to make progress appropriate in light 19 of the child’s circumstances.” Id. at 999 (emphasis added). In so holding, the Court 20 reiterated that a “bright line rule” focusing on the level of a student’s actual progress under 21 the IEP was not appropriate, but rather the scrutiny should be placed on the reasonable 22 goals of the particular student’s IEP. See, e.g., Rowley, 458 U.S. at 203-204 (“[T]he IEP 23 . . . should be reasonably calculated to enable the child to achieve passing marks and 24 advance from grade to grade.”); Endrew F., 137 S. Ct. 999 (“The IEP must aim to enable 25 the child to make progress.” (emphasis added)).3 26 3 Plaintiffs cite the following sentence from Endrew F. for the proposition that the scrutiny should be placed on Student’s actual results under the IEP: “a student offered an 27 educational program providing merely more than de minimis progress from year to year can hardly be said to have been offered an education at all.” Endrew F., 137 S. Ct. at 1000 28 (internal citations omitted). However, in the next few sentences of the opinion, the Court 1 The Endrew F. court went on to note that using this “snapshot rule” (i.e., looking at 2 the reasonableness of the District’s IEP plan at the time it was created), rather than 3 assessing its adequacy retroactively, requires deference to the school district’s judgment: 4 The “reasonably calculated” qualification reflects a recognition that crafting 5 an appropriate program of education requires a prospective judgment by school officials. The Act contemplates that this fact-intensive exercise will 6 be informed not only by the expertise of school officials, but also by the input of the child’s parents or guardians. Any review of an IEP must appreciate 7 that the question is whether the IEP is reasonable, not whether the court 8 regards it as ideal. 9 Id. at 999 (internal citations omitted); see also Baquerizo v. Garden Grove Unified Sch. 10 Dist., 826 F.3d 1179, 1187 (9th Cir. 2016) (“When reviewing whether a proposed 11 educational setting is ‘appropriate,’ we employ the ‘snapshot’ rule, which instructs us to 12 judge an IEP not in hindsight, but instead based on the information that was reasonably 13 available to the parties at the time of the IEP.”). Thus, a student’s progress (or lack thereof) 14 after implementation of an IEP is not definitive evidence of a failure to provide a FAPE. 15 See, e.g., Parenteau v. Prescott Unified Sch. Dist., No. CV 07-8072-PCT-NVW, 2008 WL 16 5214997, at *9 (D. Ariz. Dec. 11, 2008) (“The IDEA does not make the District a guarantor 17 of each student’s educational progress.”); J.B. by and through Belt v. District of Columbia, 18 325 F. Supp. 3d 1, 9 (D.D.C. 2018) (“[W]hile Endrew F. clarified the appropriate legal 19 standard for a challenge like this one, it certainly does not stand for the proposition that 20 any time a child makes negligible (or uneven) academic progress, the school system has 21 violated the IDEA.”). The ALJ correctly applied this standard, and this Court will focus its 22 analysis on whether the February 2018 IEP was reasonably calculated at its inception to 23 provide Student a FAPE in light of his circumstances. 24 Plaintiffs first argue that the February IEP was inadequate because “there was 25 26 reiterates that the scrutiny must be placed on whether the IEP was reasonably calculated to result in progress, not whether it actually did: “For children with disabilities, receiving 27 instruction that aims so low would be tantamount to sitting idly . . . awaiting the time when they were old enough to drop out.” Id. (emphasis added) (internal quotation marks and 28 citation omitted). 1 nothing included in the IEP that was designed to confer an educational benefit as it was 2 unchanged from the previous year’s IEP.” (Doc. 20 at 17). Plaintiffs acknowledge, 3 however, that Student’s schedule was reduced in the IEP. (Doc. 20 at 16). Although there 4 were additional changes made to the IEP, the ALJ focused on the reduction to Student’s 5 schedule and concluded the IEP was reasonable because “[g]iven Student’s unwillingness 6 or inability to attend class during the Spring 2018 semester, it is difficult to imagine 7 appropriate social skills or peer interaction goals that could have been attempted to be 8 implemented.” (Doc. 4 at 23-24). In other words, the February IEP was reasonably 9 calculated to provide Student an educational benefit because it was aimed solely on getting 10 him to school. (Doc. 4 at 23-24) (“The desire was to reduce Student’s anxiety to a point 11 where he would be capable of attending school regularly, then transition back to a full 12 schedule. . . . Getting Student to attend school was the most significant and pressing issue 13 at the time of the February 2018 IEP.”). Then, once Student started going to school more, 14 the district could implement more substantive changes geared toward social skills, peer 15 interaction, and anxiety. (Doc. 4 at 24) (“One would presume that if Student’s willingness 16 or ability to attend school, go to class, and engage in class improved during the IEP’s 17 effective time period, the IEP Team would amend the IEP to add goals that Student could 18 then work towards.”). 19 The fact that an IEP has only minor changes does not mean it does not provide a 20 FAPE. See J.B., 325 F. Supp. 3d at 9 (“[L]imited academic progress does not ipso facto 21 signal a violation of the IDEA any more so than does the existence of substantially similar 22 IEPs year over year.” (emphasis added)). And the fact that Student ultimately failed the 23 two classes he was taking does not necessarily mean the reduction in his course load was 24 not reasonably calculated, at the time the plan was created, to help progress Student in 25 school. It was certainly reasonable for Defendant to believe that having Student only take 26 two classes, rather than four, would reduce his school aversion. See D.F. ex rel. N.F. v. 27 Ramapo Cent. Sch. Dist., 430 F.3d 595, 598 (2d Cir. 2005) (“[F]or an IEP to be reasonably 28 calculated to enable the child to receive educational benefits, it must be likely to produce 1 progress, not regression.” (citation omitted)). This is particularly true in light of Student’s 2 expressed desires to quit school altogether. This Court is persuaded that the most pressing 3 issue with Student was getting him to physically attend school, a goal which the reduction 4 of classes in the February IEP was reasonably calculated to attain before implementing 5 more substantive changes. See L.J. by N.N.J. v. Sch. Bd. of Broward Cty., Fla., No. 11- 6 60772-CIV-MARRA, 2017 WL 6597516, at *26 (S.D. Fla. Sept. 28, 2017) (“Given 7 [student]’s strong aversion to school, the Court cannot fault the School Board for failing to 8 press [student] in the area of social skills.”). Accordingly, that the IEP had relatively minor 9 changes in its February iteration and did not prioritize the development of certain skills 10 does not render it inadequate to provide a FAPE. 11 As their final argument regarding the February IEP, Plaintiffs argue the ALJ erred 12 in “ignoring the Supreme Court mandate [in Endrew F.] that Districts must revisit IEPs if 13 the expected progress is not occurring.” (Doc. 20 at 19). Specifically, Plaintiffs cite the 14 following portion of the Questions and Answers by the Department of Education 15 interpreting the Endrew F. decision for the proposition that the District failed to provide a 16 FAPE when they “did nothing” after Student continued to avoid classes following the 17 February IEP: 18 [I]f a child is not making expected progress toward his or her annual goals, the IEP Team must revise, as appropriate, the IEP to address the lack of 19 progress. . . . If a child is not making progress at the level the IEP Team 20 expected, despite receiving all the services and supports identified in the IEP, the IEP Team must meet to review and revise the IEP if necessary, to ensure 21 the child is receiving appropriate interventions, special education and related 22 services and supplementary aids and services, and to ensure the IEP’s goals are individualized and ambitious. 23 24 (Doc. 20 at 20) (alternation in original). 25 As discussed above, the ALJ concluded that, if Student had more success attending 26 school after the February IEP was implemented, the IEP Team would then reconvene to 27 add substantive goals to the IEP. Plaintiffs allege, however, that the IEP Team should have 28 revisited the February IEP to make needed changes once Student continued to hide out in 1 a teacher’s office and refused to attend class. (Doc. 20 at 19-21). In other words, Plaintiffs 2 argue that the ALJ had it backward—the lack of progress should have prompted an IEP 3 Team meeting earlier than the one held in August. 4 The IDEA does require that the District “review, and where appropriate revise, each 5 child’s IEP at least annually.” Rowley, 458 U.S. at 182 (emphasis added); see also 20 6 U.S.C. § 1414(d)(4)(A). Any review of an IEP beyond the required annual review is a 7 matter of the district’s discretion, as courts must avoid “substitut[ing] their own notions of 8 sound educational policy for those of the school authorities which they review.” Endrew, 9 137 S. Ct. at 1001 (quoting Rowley, 458 U.S. at 206). The Supreme Court has cautioned 10 courts from “adopt[ing] the problematic role of education policymaker [by] dictat[ing] 11 which pedagogical methods a school district must consider and to what degree they must 12 be incorporated on an individualized, case-by-case basis.” Renee J. as Next Friend of C.J. 13 v. Houston Indep. Sch. Dist., No. 17-20750, 2019 WL 211216, *4 (5th Cir. Jan. 16, 2019) 14 (citing Endrew, 137 S. Ct. at 992–93; Rowley, 458 U.S. at 207); see also Carlson v. San 15 Diego, 380 F. App’x 595, 597 (9th Cir. 2010) (citing Rowley, 485 U.S. at 208, and agreeing 16 that questions of “proper methodology” should be left to the school district). 17 Here, there were three months left of the school year after the February IEP was 18 implemented, and the IEP Team met the beginning of the next school year in August to 19 discuss Student’s progress, ultimately proposing multiple changes. To be sure, as explained 20 in more detail below, many of the proposed changes were not implemented because 21 Student did not return to school after the August IEP. However, when Student refused to 22 go to school and try out the August amendment, the IEP Team convened yet again a mere 23 twenty-one days later. New changes were not proposed during that September meeting, but 24 only because Defendant still wanted to implement the August changes and address 25 Students responses to them before thrusting even more changes upon Student. Defendant’s 26 IEP Team—comprised of members who know Student personally and have worked with 27 him intimately—made a deliberate decision to limit the changes in his IEP to avoid 28 overwhelming him even more. The Court will not fault Defendant for failing to implement 1 new changes when its strategic plan was to first assess Student’s response to the changes 2 already proposed. 3 In sum, this Court affirms the ALJ’s holding that Plaintiffs “failed to establish that 4 the February 2018 IEP was not reasonably calculated to provide Student a meaningful 5 educational opportunity.” (Doc. 4 at 24). 6 c. August 2018 and September 2018 amendments 7 Plaintiffs next argue the ALJ erred in concluding that the August and September 8 amendments to Student’s IEP were sufficient to provide a FAPE. (Doc. 20 at 21). 9 Specifically, Plaintiffs argue the ALJ “refused to acknowledge the overwhelming evidence 10 . . . that Student’s anxiety and resulting school refusal was due to the large campus.” (Doc. 11 20 at 21). Essentially, Plaintiffs argue that Defendant’s focus on getting Student to school 12 was misplaced, because the sheer act of being at school caused Student’s anxiety to worsen. 13 Plaintiffs further argue that “[t]he most glaring flaw in the ALJ’s decision is that she 14 ignored all the District could have done” and that Defendant “failed and refused to consider 15 an alternative placement eve[n] after a year of Student steadily regressing.” (Doc. 20 at 25). 16 i. Facts 17 As discussed above, following the February IEP, Student’s attendance initially 18 improved but Student thereafter continued to show signs of school aversion by missing 19 multiple days of school and spending other days in a teacher’s office refusing to go to class. 20 (Doc. 4 at 9). Parents requested a meeting with the school to address Student’s ongoing 21 issues, and in August 2018 the IEP Team reconvened. (Doc. 4 at 9). The Team discussed 22 Student’s anxiety and considered a number of strategies including “individual counseling,” 23 “small group to address social skills,” and “folder system where the co-teachers in each of 24 his classes [] identify the one assignment he should be focusing on.” (Doc. 4 at 10). 25 Additionally, during the August IEP meeting the Team considered alternative 26 school options, including homeschooling and private placement schools such as AZ Aspire 27 Academy. (Doc. 4 at 11). However, the Team felt that homeschooling was not in Student’s 28 best interest because “it would not help Student deal with his anxiety or prepare him for 1 the workforce, trade school, or college.” (Doc. 4 at 11). Regarding private placement like 2 AZ Aspire, the Team was concerned about “the drastic jump from Student’s current 3 placement to a private day school.” (Doc. 4 at 11). Dr. Katten, Student’s private 4 psychologist, also expressed concerns “about Student suffering psychological regression if 5 he experienced a wholesale change of his educational environment.” (Doc. 4 at 24). 6 Nonetheless, Defendant “indicated they would look into the placement [at AZ Aspire] and 7 whether purchase orders existed that would allow Student to be placed there.” (Doc. 4 at 8 21). Additionally, before deciding to transfer Student to another school, the Team amended 9 Student’s February IEP. 10 The August amendment to Student’s IEP included the following changes: 11 (i) Rearranging Student’s schedule so the class with his “preferred teacher” was 12 during his first period; 13 (ii) Doubling counseling services from 120 minutes per month to 240; 14 (iii) Adding 45 minutes per month of support services; 15 (iv) Moving Student to a more restrictive placement (restricting his time in 16 general education classes); 17 (v) Adding accommodations for Student’s sensory processing including 18 allowing one earbud in, speaking only to Student’s side, and allowing 19 Student to communicate via email; 20 (vi) Adding an accommodation for physical movement; and 21 (vii) Allowing Student to enter the classroom before other students. 22 (Doc. 4 at 12, 24-25). 23 The Team and Parents agreed to meet again in September to evaluate Student’s 24 progress following the August amendment after collecting data on his response to it. 25 (Doc. 4 at 12). However, following the August meeting, Parents were generally 26 unresponsive and Student did not return to school, so the effectiveness of the amendment 27 could not be considered. (Doc. 4 at 12-13). On September 8, 2018 Student’s father emailed 28 the school expressing concern about Student being “shut down” and requesting another 1 IEP meeting. But on September 12, before the requested September IEP meeting was held, 2 Parents and Student toured AZ Aspire. (Doc. 4 at 14). At the September IEP meeting, 3 Student’s father recounted Student’s positive reaction to AZ Aspire. (Doc. 4 at 14). 4 In response, at the September meeting the IEP Team proposed several options in an 5 attempt to recreate the atmosphere at Aspire: “If we need to make that adjustment to a 6 hybrid of any number of things: LSC courses, combined with e-campus, combined with 7 some home instructions—whatever that needs to look like, we can make that happen.” 8 (Doc. 4 at 15). The IEP Team also suggested placing Student in Cactus High School, 9 another public high school in the district roughly half the size of his current school, but 10 Parents rejected that suggestion because they felt it would be too traumatic for Student to 11 attend a school that housed other students who he went to elementary school with. (Doc. 4 12 at 14-15).4 Additionally, before transferring Student, the Team still wanted to implement 13 the August amendment to the IEP, collect data on Student’s response, and reconvene in ten 14 days to discuss (as was the plan before the AZ Aspire tour). (Doc. 4 at 15). However, before 15 the ten-day trial of the August IEP was over, Parents unilaterally enrolled Student in AZ 16 Aspire. (Doc. 4 at 16). 17 ii. ALJ Decision 18 Regarding the August amendments, the Team expressed concerns about changing 19 to many aspects of the IEP, causing Student to “regress emotionally,” so the Team agreed 20 to only implement the above changes. (Doc. 4 at 24). The ALJ found that this decision, 21 along with the decision to implement the changes only for one month and for the Team to 22 reconvene and look at Student’s progress before adding more changes, was reasonable. 23 4 The Court finds that, during the 2018-2019 school year, Sunrise Mountain High School 24 had 1,920 students enrolled and Cactus High School had 1,207 students enrolled, making Cactus High School about 63% the size of Sunrise Mountain. See National Center for 25 Educational Statistics, available at https://nces.ed.gov/ccd/schoolsearch/school_detail.asp?ID=040625000589 (Sunrise High 26 School) (last visited Sept. 20, 2020); https://nces.ed.gov/ccd/schoolsearch/school_detail.asp?Search=1&DistrictID=0406250& 27 ID=040625000508 (Cactus High School) (last visited Sept. 20, 2020). The ALJ’s finding that Cactus High School is “roughly half the size of Sunrise” is therefore accurate. 28 (Doc. 4 at 13). 1 (Doc. 4 at 25-26). The ALJ further held that, as a result of Student’s failure to attend school 2 after the August meeting, Defendant “could not collect data regarding the changes 3 discussed [at the August meeting] and agreed upon during the meeting.” (Doc. 4 at 22). 4 The ALJ attributed Student’s unwillingness to return to campus after the August IEP 5 meeting, in part, to Parents’ “ignor[ing] Respondent School District’s attempts to engage 6 Parents and Student to help get Student back on campus.” (Doc. 4 at 26). Thus, the ALJ 7 concluded that “the effectiveness of the changes could not be considered by the IEP Team.” 8 (Doc. 4 at 25). 9 Regarding the September amendments, in addition to considering alternative private 10 placements, the ALJ found that the amendment offered “options, including e-campus 11 courses, homebound instruction, counseling, and small classes, [that] were similar to those 12 options available at AZ Aspire.” (Doc. 4 at 25). The ALJ concluded that “[i]t is difficult to 13 determine what accommodations and modifications Respondent School District could have 14 offered that Petitioners would have deemed appropriate for Student absent a placement at 15 Aspire.” (Doc. 4 at 26). In sum, the ALJ held that Plaintiffs “failed to establish that the 16 August 23, 2018 and September 13, 2018 amendments to the February 28, 2018 IEP were 17 not appropriate.” (Doc. 4 at 26). 18 iii. Analysis 19 Plaintiffs argue that Defendant failed to consider alternative private school 20 placement (specifically AZ Aspire) for Student. (Doc. 20 at 8-9) (“The District did not 21 consider the small private school.”). The ALJ did not specifically find that Defendant failed 22 to consider the alternative placement altogether (although she did hold that Petitioners 23 argued “Respondent School District should have more seriously considered the private day 24 school placement,” Doc. 4 at 25, implying they did consider it to some extent). Rather, the 25 ALJ found that, before looking into alternative placement, Defendant “proposed that they 26 implement the August 23, 2018 IEP for a short 10-day window, collect data, and hold an 27 IEP review meeting on September 27, 2018 as previously scheduled to assess progress and 28 consider further options, as needed.” (Doc. 4 at 15). This was not in error. 1 First of all, Defendant did offer other accommodations to help limit Student’s 2 exposure to large class sizes. At the September meeting, Defendant proposed a variety of 3 instructional methods that would limit Student’s exposure to the large classes on campus 4 (i.e., home instruction, online courses, etc.), and also suggested another school within the 5 district which had fewer students (Cactus High School). Plaintiffs offer no evidence that 6 Student could not receive any educational benefit from the accommodations offered, or 7 that he required placement at a special education school. Rather, Plaintiffs “criticized that 8 the homebound instructor would not be the same instructor that would then teach Student 9 should he return to the classroom on campus,” and “rejected a move to Cactus High School, 10 asserting that Student might run into students who also attended Pioneer Elementary 11 behavior program with him and he would feel uncomfortable.” (Doc. 4 at 14-15, 25). 12 While these solutions might not be ideal for Student, Plaintiffs fail to set forth any 13 evidence that Student could not receive some educational benefit from these proposed 14 changes. Compare Gellert v. D.C. Pub. Schs., 435 F. Supp. 2d 18, 24 (D.D.C. 2006) 15 (“Defendant argues that failure to include one requested accommodation, i.e. class size, 16 should not render the IEP inappropriate. However, [Defendant] failed to present any 17 evidence to establish that [the student] could benefit in his education without this specific 18 accommodation, and failed to rebut any of Plaintiffs’ evidence to the contrary. As such, 19 Defendant failed to meet its burden of proof at the due process hearing that FAPE would 20 be provided.” (emphasis added) (internal citations and quotation marks omitted)) with M.H. 21 v. New York City Dep’t of Educ., No. 10 CIV. 1042 (RJH), 2011 WL 609880, at *12 22 (S.D.N.Y. Feb. 16, 2011) (“The [ALJ] further noted that . . . the hearing record was devoid 23 of evidence that [the student’s] anxieties or perfectionism were affected by class size or 24 evidence that [the student] would be unable to function in a class of twenty-five students. 25 . . . The connection between [a student’s school aversion] history and what class size is 26 appropriate for a student with that history [] is exactly the sort of policy judgment on which 27 . . . this Court should defer.” (emphasis added)). 28 /// 1 Furthermore, the Court finds that it was reasonable for Defendant to conclude it was 2 in Student’s best interest to first implement the changes in the IEP, in the general education 3 atmosphere, and collect data before placing him in an even more restrictive environment. 4 “[S]pecial classes, separate schooling, or other removal of children with disabilities from 5 the regular educational environment occurs only when the nature or severity of the 6 disability of a child is such that education in regular classes with the use of supplementary 7 aids and services cannot be achieved satisfactorily.” 20 U.S.C. § 1412(a)(5)(A). This “sets 8 forth Congress’s preference for educating children with disabilities in regular classrooms 9 with their peers.” Sacramento City Unified Sch. Dist., Bd. of Educ. v. Rachel H. ex rel. 10 Holland, 14 F.3d 1398, 1403 (9th Cir. 1994). Here, the ALJ did not “turn[] a blind eye” to 11 the evidence the Student was overwhelmed by the sheer size of the campus. 12 (Doc. 20 at 22). Rather, she found that Defendant wanted to give Student another chance 13 to face those fears and assimilate in a general population school, and she deferred to their 14 judgment. See Endrew, 137 S. Ct. at 999-1000, (“[T]he IDEA requires that children with 15 disabilities receive education in the regular classroom whenever possible. . . . [F]or most 16 children, a FAPE will involve integration in the regular classroom . . . . The goals may 17 differ, but every child should have the chance to meet challenging objectives.”). This Court 18 therefore affirms the ALJ’s decision that the August and September amendments were 19 reasonably calculated to provide Student a FAPE. 20 ii. Tuition reimbursement 21 A parent or guardian is “entitled to reimbursement only if a federal court concludes 22 both (1) that the public placement violated the IDEA, and (2) that the private school 23 placement was proper under the Act.” Cty. of San Diego v. Cal. Special Educ. Hearing 24 Office, 93 F.3d 1458, 1466 (9th Cir. 1996) (citing Florence Cty. Sch. Dist. 4 v. Carter, 510 25 U.S. 7 (1993)). “If both criteria are satisfied, the district court must then exercise its ‘broad 26 discretion’ and weigh ‘equitable considerations’ to determine whether, and how much, 27 reimbursement is appropriate.” C.B. ex rel. Baquerizo v. Garden Grove Unified Sch. Dist., 28 635 F.3d 1155, 1159 (9th Cir. 2011) (quoting Carter, 510 U.S. at 15–16). 1 Because this Court finds that the ALJ did not err in her conclusion that Student was provided a FAPE, the Court need not reach the issue of whether AZ Aspire is an appropriate alternative placement under the IDEA. Because Student was not denied a FAPE, Plaintiffs 4 are not entitled to reimbursement from Defendant for electing to enroll Student in another 5 | more desirable private school. 6 Accordingly, 7 IT IS ORDERED affirming the July 30, 2019 decision of the Administrative Law 8 | Judge (Doc. 4). 9 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment accordingly and terminate this case. 11 Dated this 30th day of September, 2020. 12 DK A 4 13 Honorable reven P. Légan 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19