Carlos Baquerizo v. Garden Grove Unified Sch Dist ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS BAQUERIZO, JR.; No. 14-56464
ALEXIS BAQUERIZO,
Plaintiffs-Appellants, D.C. No.
8:12-cv-01825-JVS-CW
v.
GARDEN GROVE UNIFIED OPINION
SCHOOL DISTRICT, A Local
Educational Agency,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted March 15, 2016
Santa Ana, California
Filed June 22, 2016
Before: RAYMOND C. FISHER, MILAN D. SMITH, JR.,
and JOHN B. OWENS, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
2 BAQUERIZO V. GARDEN GROVE USD
SUMMARY*
Individuals with Disabilities Education Act
The panel affirmed the district court’s judgment in favor
of the defendant school district in an action filed by a student
and his guardian under the Individuals with Disabilities
Education Act.
The panel held that the school district did not violate the
procedural requirements of the IDEA in two Individualized
Education Programs, or IEPs. As to the first IEP, the panel
agreed with the district court that any procedural failure on
the part of the school district was caused by the student’s
guardian, and that, in any event, the student’s placement was
a free appropriate public education, or FAPE. As to the
second IEP, the school district did not commit a procedural
violation by failing to assess the student for anxiety or by
failing to determine baselines for speech and language goals.
In addition, the student’s placement was a FAPE in the least
restrictive environment. Accordingly, the guardian was
properly denied reimbursement for private school placement.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BAQUERIZO V. GARDEN GROVE USD 3
COUNSEL
Tania L. Whiteleather, Law Offices of Tania L. Whiteleather,
Lakewood, California, for Plaintiffs-Appellants.
S. Daniel Harbottle, Harbottle Law Group, Irvine, California,
for Defendant-Appellee.
OPINION
M. SMITH, Circuit Judge:
Carlos Baquerizo (Carlos or Student) and his guardian,
Alexis Baquerizo (Guardian), seek reimbursement from
Garden Grove Unified School District (Garden Grove or
district) for the cost of Carlos’s private education during the
2009–2010 and 2011–2012 school years. They claim that
Garden Grove failed to comply with the procedural
requirements of the Individuals with Disabilities Education
Act, 20 U.S.C. §§ 1400–1491o (IDEA), and therefore failed
to provide a free appropriate public education (FAPE) in the
least restrictive environment (LRE) for Carlos. The
administrative law judge (ALJ) denied reimbursement, and
the district court affirmed. We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm.
FACTS AND PROCEDURAL BACKGROUND
Carlos Baquerizo has autism. During the 2006–2007
school year, Carlos attended a general education program at
a public school within the Garden Grove school district.
Carlos’s instruction was supplemented by instruction at the
Pliha Reading and Language Center (PRLC). In the summer
4 BAQUERIZO V. GARDEN GROVE USD
of 2007, Guardian withdrew Carlos from public school and he
began full-time instruction at PRLC. He continued there until
PRLC closed in July 2009. At that time, Carlos enrolled in
the Pliha Speech and Learning Center (PLSC)1, where he
remained until he graduated from high school in 2014.
Carlos, his Guardian, and Garden Grove have litigated the
issue of whether Garden Grove is required to reimburse
Guardian for Carlos’s private instruction with regard to every
school year since 2007.
Under the IDEA, a school district must work with a
disabled student’s guardian at the end of each school year to
prepare an Individualized Education Program (IEP) for the
upcoming school year. At an IEP meeting, the school district
uses assessments of the student’s performance and
educational needs in order to offer an individualized
educational placement. The two IEPs at issue in this case are
the June 2009 IEP, created for the 2009–2010 school year,
and the June 2011 IEP, created for the 2011–2012 school
year. Because an understanding of the IDEA litigation
involving Carlos’s other school years is helpful to
understanding the case before us, we will outline the IEPs
since Carlos left public school.
I. The 2006–2007 and 2007–2008 School Years
During the 2006–2007 school year, Carlos attended both
public school and PRLC. During the summer of 2007, he
began attending PRLC exclusively, and continued to do so
throughout the 2007–2008 school year. Guardian filed a
request for a due process hearing before the California Office
of Administrative Hearings, seeking full reimbursement for
1
Barbara Pliha operated both PRLC and PLSC.
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Carlos’s tuition at PRLC, as well as transportation costs. C.B.
ex rel. Baquerizo v. Garden Grove Unified Sch. Dist.,
635 F.3d 1155 (9th Cir. 2011). As to these school years, it
was undisputed that the education offered by Garden Grove
was not a FAPE for Carlos. The only decision remaining was
whether and to what extent Guardian should be reimbursed
for her expenses. Id. at 1159. The ALJ awarded only partial
reimbursement for the 2007–2008 school year because PRLC
did not meet all of Carlos’s educational needs. That decision
was reversed by the district court. The district court ruled that
PRLC provided “proper” alternative services under the IDEA
and that full reimbursement was appropriate, despite the fact
that it did not meet all of Carlos’s needs. We affirmed. Id. at
1160.
II. The 2008–2009 School Year
No IEP meeting was held for the 2008–2009 school year.
Guardian filed a due process hearing request, contending that
in failing to hold an IEP meeting, Garden Grove had denied
Carlos a FAPE and that she was entitled to reimbursement for
his educational expenses. OAH Case No. 2010041542. The
ALJ ruled that the failure was caused exclusively by the
obstructions created by Guardian and PRLC (Garrett
Decision). During the period “between May 16, 2008 to June
17, 2009,” ALJ Garrett found that Garden Grove “made great
efforts to conduct assessments, convene an IEP meeting, and
make an offer of placement and services.” Guardian “proved
to be uncooperative, and was chiefly responsible for the year-
long delay.” Garden Grove “frequently scheduled and
rescheduled assessment sessions and IEP meetings, in an
effort to accommodate Guardian.” Garden Grove “also
drafted and forwarded to [P]RLC multiple authorizations to
observe student, amid [P]RLC’s belated claims that previous
6 BAQUERIZO V. GARDEN GROVE USD
authorizations had expired.” Guardian unreasonably withheld
the information that Carlos had been attending a social skills
group for most of the year, which Garden Grove employees
“would have observed . . . had they known that Student was
receiving such services.”
The Garrett Decision was affirmed by the district court on
February 6, 2012 (First Selna Decision). Guardian did not
appeal the First Selna Decision, and it therefore became final
in March 2012.
III. The May 2009 Settlement
A settlement was executed on May 7, 2009 to “settle fully
and finally resolve all differences, disputes, and controversies
existing between the Parties related to the consolidated OAH
Cases 2009020458 and 2009040166.” OAH Case No.
2009020458 was a due process hearing request from Garden
Grove filed on February 12, 2009, alleging that it had “made
numerous attempts to request dates and times convenient for
the Guardian to complete the assessments” pursuant to an
assessment plan created in November 2007. Garden Grove
alleged that Guardian had consistently failed to make Carlos
available, and had otherwise hindered the ability of Garden
Grove’s assessors to complete the required assessments. OAH
Case No. 2009040166 was a due process hearing request
from Guardian, alleging that the failure to hold the
assessments was because she had issues with transporting
Carlos to the testing sites due to her job constraints, and that
Garden Grove had unreasonably failed to provide
transportation or arrange alternative testing sites. The May
2009 Settlement resolved these assessment disputes,
providing that
BAQUERIZO V. GARDEN GROVE USD 7
Guardian agrees to make Student available for
the completion of assessments. The Parties
have agreed that the following assessments
will be completed as follows:
a. May 12, 2009: 8:30 a.m. - 10:00 a.m.
Audiological screening at District Office.
b. May 14, 2009: 8:30 a.m. - 10:00 a.m.
Speech & Language assessment at Cook
Elementary.
The Settlement Agreement purports to “resolve[] any and all
issues between the Parties raised in the consolidated OAH
Cases . . . up to and including the date of execution of this
Agreement.”
IV. The 2009–2010 School Year
On June 18, 2009, six weeks after the execution of the
May 2009 Settlement Agreement and a single day after the
time period at issue in the Garrett Decision, Garden Grove
held an IEP meeting attended by Guardian and her legal
counsel. In that IEP, Garden Grove offered Carlos a
placement at Jordan Intermediate School, in a special day
class for students with mild to moderate disabilities. The
placement included two hours of small group and individual
speech and language therapy instruction per week; forty-five
minutes of occupational therapy per week; ongoing
monitoring of his progress in general education; and eight
hours of small-group intensive behavioral instruction per
week. Guardian rejected this offer and re-enrolled Carlos in
PRLC. In the comments of the June 2009 IEP, Guardian
requested a “complete IEE in psychoed, Speech and
8 BAQUERIZO V. GARDEN GROVE USD
Language, [intensive behavioral instruction], and [central
auditory processing disorder].” Garden Grove did not provide
the IEEs; it only provided the assessments agreed to in the
May 2009 Settlement Agreement.
Guardian waited almost two years to challenge the June
2009 IEP and request reimbursement. On June 15, 2011, she
filed a request for a due process hearing. OAH Case No.
2011060840. During the intervening two years, the parties
held an IEP for the 2010–2011 school year and initiated
administrative proceedings over that IEP. Because of the
delay, the dispute over the 2009–2010 school year was
consolidated with the litigation over the 2011–2012 school
year. See infra Part VI.
V. The 2010–2011 School Year
In the June 2010 IEP, Garden Grove offered Carlos a
placement at Buena Park Speech Language Development
Center (Buena Park). Like the June 2009 IEP offer at Jordan
Intermediate School, Carlos would not have been placed in a
general education class with typical peers at Buena Park.
Instead, the IEP would have placed him in a small group with
other students with mild to moderate special education needs.
In December 2010, Garden Grove filed a request for a due
process hearing to establish the appropriateness of this
placement. In October 2011, ALJ Myers-Cregar issued a
decision finding that the Buena Park placement was a FAPE
in the LRE for Carlos (Myers-Cregar Decision). OAH Case
No. 2010120784. Specifically, the Myers-Cregar Decision
found that a small-group setting was more appropriate for
Carlos than a general-education setting because he was
currently being instructed in a one-on-one setting at PRLC
and it was important to “minimize any harmful effect of
BAQUERIZO V. GARDEN GROVE USD 9
transitioning away from individual instruction.” Guardian
appealed the Myers-Cregar Decision to the district court,
which affirmed (Second Selna Decision). The Second Selna
Decision ruled that a general education placement “would be
highly problematic for Student’s transition, particularly given
that he has been in individualized placement for the last three
years.” We affirmed. C.B. ex rel. Baquerizo v. Garden Grove
Unified Sch. Dist., 575 F. App’x 796 (9th Cir. 2014).
VI. The 2011–2012 School Year
In the June 2011 IEP, Garden Grove again offered Carlos
a placement at Buena Park. Guardian again refused to consent
to the IEP. In October 2011, Garden Grove filed a due
process hearing request seeking a declaration that the June
2011 IEP was appropriate. OAH Case No. 2011100955.
Because Guardian had recently (on June 15, 2011) filed a
request for a due process hearing and reimbursement for the
2009–2010 school year (OAH Case No. 2011060840), ALJ
Ruff consolidated the two proceedings and reviewed both the
June 2009 IEP and the June 2011 IEP. The issues before ALJ
Ruff were substantially similar to the ones before us today:
Whether the school district committed procedural violations
of the IDEA by failing to conduct appropriate assessments of
Carlos’s needs, whether it offered a FAPE in the IEPs, and if
not, whether Guardian should be reimbursed for Carlos’s
private educational expenses. The ALJ denied reimbursement
in a ruling issued in July 2012. She ruled that many of the
issues about whether Garden Grove properly assessed Carlos
had been “already resolved in prior litigation between the
parties” in the Garrett Decision, which had been issued a few
months earlier in March 2012. She concluded that to the
extent the issues were not precluded, Guardian failed to show
a denial of a FAPE in either the June 2009 IEP or June 2011
10 BAQUERIZO V. GARDEN GROVE USD
IEP. The district court affirmed, after which Guardian filed
this timely appeal.
ANALYSIS
In reviewing the district court’s judgment in favor of
Garden Grove, we review conclusions of law de novo and
findings of fact for clear error. Amanda J. ex rel. Annette J. v.
Clark Cty. Sch. Dist., 267 F.3d 877, 887 (9th Cir. 2001).
Whether a proposed IEP constitutes a FAPE is a question of
law we review de novo. Id. “We, like the district court,
however, ‘must give “due weight” to judgments of education
policy when [we] review state hearings. . . . [C]ourts should
not substitute their own notions of sound education policy for
those of the school authorities which they review.’” Union
Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir. 1994)
(alterations in original) (quoting Gregory K. v. Longview Sch.
Dist., 811 F.2d 1307, 1311 (9th Cir. 1987)). “We give
deference to the administrative findings of the [ALJ]
particularly when . . . they are thorough and careful.” Id.
The IDEA was passed “to ensure that all children with
disabilities have available to them a free appropriate public
education . . . designed to meet their unique needs.” 20 U.S.C.
§ 1400(d)(1)(A). A FAPE is defined as an education that is
provided at public expense, meets the standards of the state
educational agency, and is in conformity with the student’s
IEP. Id. § 1401(9). In creating an IEP, a school district is
procedurally required to conduct individual evaluations (and
reevaluations) of the student, using “a variety of assessment
tools and strategies” to gather information to determine the
content of the IEP. Id. § 1414(b)(1)–(2).
 BAQUERIZO V. GARDEN GROVE USD 11
In reviewing compliance with the IDEA, we first consider
whether the district complied with the procedures set forth in
the IDEA, and then consider whether the IEP was reasonably
calculated to enable the child to receive educational benefits.
Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley,
458 U.S. 176, 206–07 (1982). “Not every procedural
violation . . . is sufficient to support a finding that the child in
question was denied a FAPE.” Amanda J., 267 F.3d at 892.
A student is denied a FAPE if a procedural violation
“result[s] in the loss of educational opportunity . . . or
seriously infringe[s] the parents’ opportunity to participate in
the IEP formulation process.” Id. (internal quotation marks
and citation omitted).
I. June 2009 IEP
Guardian argues that Garden Grove violated the
procedural requirements of the IDEA in the June 2009 IEP.
Specifically, she claims that 1) Garden Grove violated the
IDEA by failing to assess Carlos before the meeting;
2) Garden Grove impermissibly failed to conduct the
requested IEEs; and 3) Guardian was prevented from
participating in the IEP meeting. She implies that these
procedural failures led to a placement offer from Garden
Grove that did not qualify as a FAPE, and that she was
therefore justified in placing Carlos in private instruction and
is entitled to reimbursement.
We find these arguments to be unpersuasive. We agree
with the district court and ALJ Ruff that any procedural
failure on the part of Garden Grove was caused by Guardian,
and that, in any event, the Jordan Intermediate School
placement was a FAPE.
12 BAQUERIZO V. GARDEN GROVE USD
A. Assessments
By its own admission, Garden Grove did not have
updated performance levels for Carlos at the June 2009 IEP
meeting, which made it difficult for the IEP to set accurate
goals. However, as the district court correctly noted, “[t]here
is no evidence in the record to suggest that [Garden Grove]
lacked present levels for Student for any reason other than the
Guardian and [P]RLC’s delays.” That issue was fully and
finally litigated in the Garrett Decision.
The Garrett Decision addressed the 13 months
immediately prior to the June 2009 IEP, and ruled that up
until June 17, 2009, Guardian had thwarted Garden Grove’s
“great efforts to conduct assessments” by being
uncooperative. The First Selna Decision upheld the Garrett
Decision in its entirety, and was not appealed. In this appeal,
Guardian suggests that the previous litigation—centered
around Garden Grove’s failure to conduct assessments
through June 17, 2009—should have no bearing on whether
the goals set one day later were supported by appropriate
assessments. Not so. The ability of Garden Grove to obtain
assessments prior to the meeting on June 18, and arrive
armed with that data, is directly relevant to whether any
procedural defects were excusable. Thus, the Garrett Decision
precludes Guardian from arguing that Garden Grove violated
the IDEA because it failed to assess Carlos in time for the
June 2009 IEP.
B. IEEs
Guardian argues that Garden Grove violated the IDEA
when it failed to conduct the IEEs she requested in the
comments to the June 2009 IEP. An IEE is “conducted by a
BAQUERIZO V. GARDEN GROVE USD 13
qualified examiner who is not employed by the public agency
responsible for the education of the child in question.”
34 C.F.R. § 300.502(a)(3)(i). “If a parent requests an
independent educational evaluation at public expense, the
public agency must, without unnecessary delay, either –
(i) File a due process complaint to request a hearing to show
that its evaluation is appropriate; or (ii) Ensure that an
independent educational evaluation is provided at public
expense . . . .” Id. § 300.502(b)(2). It is undisputed that
Garden Grove did neither.
ALJ Ruff excused this failure by invoking the May 2009
Settlement Agreement, in which Guardian and Garden Grove
settled the dispute that had been ongoing since November
2007 about what assessments must be conducted. The May
2009 Settlement Agreement explicitly resolves issues only
through the date of execution (May 7) and also resolves
disputes only as to OAH Case Nos. 2009020458 and
2009040166. Neither of those OAH cases are directly on
appeal in this consolidated proceeding, and Guardian made
the IEE request six weeks after the Settlement Agreement
was executed. Thus, the IEEs are perhaps not technically
foreclosed by the language of the Settlement Agreement.
However, they are certainly covered by the substance of the
Settlement Agreement. The Settlement Agreement resolved
an ongoing dispute over assessments; the purpose of those
assessments was to gather data to be used in creating future
IEPs. Guardian agreed that only two assessments were
required, and then six weeks later—at the very next IEP
meeting—claimed that additional assessments were needed
in order to find an appropriate placement for Carlos.
Garden Grove might have been required under the IDEA
to conduct the requested IEEs, because Guardian did not
14 BAQUERIZO V. GARDEN GROVE USD
explicitly relinquish her right to request them in the
Settlement Agreement. However, we agree with the district
court’s alternative conclusion that “[e]ven if the District
should have responded to the [request for an] IEE, there is no
evidence of any substantive denial of FAPE based on this
failure.” Guardian had agreed in the Settlement Agreement
that the two assessments held in May were appropriate, which
indicates that she agreed those assessments were all that were
needed to create the upcoming IEP. The lack of prejudice is
further evidenced by the fact that she failed to raise the issue
for two years, “after an intervening IEP was held and
additional testing conducted.”
C. Guardian’s Participation
Guardian was not prevented from meaningfully
participating in the June 2009 IEP meeting. She attended the
meeting, along with her legal counsel. ALJ Ruff found that
Guardian’s counsel was “very active in making comments
and asking questions throughout the meeting.” “District IEP
team members were responsive to counsel’s questions and
comments. At no point during the meeting was Student’s
Guardian or Student’s counsel denied the ability to participate
in the discussion.” Guardian contends that Garden Grove did
not allow her to discuss the “continuum” of placement
options that might be available to Carlos prior to making its
offer of FAPE. However, Guardian has pointed us to no
statute or case law—and we can find none—indicating that a
guardian is prevented from “participating” in the IEP process
if the school district first prepares an offer to be discussed at
the IEP meeting, instead of conducting a free-wheeling
discussion and then creating an offer, and we see no logical
reason that such would be the case. Although, as ALJ Ruff
noted, it is “improper for the district to prepare an IEP
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without parental input, with a preexisting, predetermined
program and a ‘take it or leave it’ position,” that did not occur
here.
D. FAPE
We agree with ALJ Ruff and with the district court that
any procedural violation of the IDEA on the part of Garden
Grove is excused because they were directly caused by
Guardian. Furthermore, whether a procedural violation
occurred is only half of the inquiry. We will only reverse the
decision of the ALJ if a procedural violation “is sufficient to
support a finding that the child in question was denied a
FAPE.” Amanda J., 267 F.3d at 892. We conclude that the
June 2009 IEP did not deny Carlos a FAPE.
When reviewing whether a proposed educational setting
is “appropriate,” we employ the “snapshot” rule, which
instructs us to judge an IEP not in hindsight, but instead based
on the information that was reasonably available to the parties
at the time of the IEP. Adams v. Oregon, 195 F.3d 1141, 1149
(9th Cir. 1999). “To the maximum extent appropriate,
children with disabilities . . . are educated with children who
are not disabled . . . .” 20 U.S.C. § 1412(a)(5)(A). “[S]pecial
classes, separate schooling, or other removal of children with
disabilities from the regular educational environment occurs
only when the nature or severity of the disability of a child is
such that education in regular classes with the use of
supplementary aids cannot be achieved satisfactorily.” Id.
This “sets forth Congress’s preference for educating children
with disabilities in regular classrooms with their peers.”
Sacramento City Unified Sch. Dist., Bd. of Educ. v. Rachel H.
ex rel. Holland, 14 F.3d 1398, 1403 (9th Cir. 1994). To reach
this objective, courts apply a four-part test to review whether
16 BAQUERIZO V. GARDEN GROVE USD
a school district appropriately placed a child outside of a
regular classroom setting. We consider “(1) the educational
benefits of placement full-time in a regular class; (2) the non-
academic benefits of such placement; (3) the effect [the
student] ha[s] on the teacher and children in the regular class;
and (4) the costs of mainstreaming [the student].” Id. at 1404.
There is no indication in the record that Garden Grove’s
failure to assess Carlos prior to making its placement offer
deprived him of a FAPE. The thorough and careful Ruff
Decision points out that at the June 2009 IEP, Garden Grove
team members “understood that they did not have updated
information and therefore proposed to revisit Student’s IEP
after Student had been in the District’s program for 30 days.”
“In light of the background of this case, including the prior
litigation . . . . [this] was an acceptable solution to the lack of
updated information.” In this context, Guardian cannot
persuasively demonstrate that the lack of updated assessments
substantially harmed Carlos, or that the resulting offer of
placement at Jordan Intermediate School was not a FAPE.
Indeed, Guardian’s briefing in this case does not articulate
any reason why the June 2009 IEP offer of placement at
Jordan Intermediate School would have been different or
more appropriate had Garden Grove successfully evaluated
Carlos in the months leading up to the June 2009 IEP. At
most, Guardian argues that “without full assessment and
identification of Carlos’ needs,” Garden Grove must have
proposed a placement that was not consistent with those
needs. This generalized argument was not enough to carry the
Guardian’s burden of proof before the ALJ. Schaffer ex rel.
Schaffer v. Weast, 546 U.S. 49, 62 (2005) (“The burden of
proof in an administrative hearing challenging an IEP is
properly placed upon the party seeking relief.”). And on
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appeal, we cannot conclude that the ALJ’s conclusion on that
score was clearly erroneous. See Amanda J., 267 F.3d at 887.
As to the substance of the offer, we agree with ALJ Ruff
that when we view Garden Grove’s offer through the lens of
the Rachel H. factors,2 it was appropriate to place Carlos in a
small-group setting for a transitional period. Carlos and his
Guardian have introduced no evidence to show that Carlos
would have benefitted by a typical classroom setting, and Ms.
Pliha affirmatively testified that he would not have gained a
benefit in such a classroom. Instead, she testified that Carlos
needed to be educated in a one-on-one setting3—which is
even more restrictive than a small-group setting. As to non-
academic benefits, Carlos might have benefitted socially if he
were educated with other students, but Guardian fails to
explain why the small-group setting at Jordan Intermediate
School would not have provided those social benefits. The
two remaining Rachel H. factors do weigh in favor of placing
Carlos in a mainstream environment: there is no evidence that
he would have been disruptive in a regular classroom, or that
it would have been cost prohibitive. However, ALJ Ruff
reasonably determined that the first factor—Carlos’s
2
Guardian argues that the June 2009 IEP is defective because Garden
Grove did not explicitly address the Rachel H. factors in that document.
However, Guardian has not cited to any law that suggests the school
district, in the IEP document itself, must justify its placement offer by
explicitly applying the Rachel H. framework. Instead, Rachel H.
articulates a test that courts employ when reviewing the school district’s
decision.
3
Guardian’s contention that Jordan Intermediate School was not
appropriate because it did not include instruction with typical peers is
undermined by her decision to educate Carlos at PLSC instead. At PLSC,
Carlos was educated in a one-on-one setting with no peers—typical or not.
18 BAQUERIZO V. GARDEN GROVE USD
academic needs—weighed most heavily against a mainstream
environment. The small classroom offered by Garden Grove
would have been much better for Carlos’s education than
general education, particularly given the testimony by Ms.
Pliha. Therefore, we affirm the conclusion that the June 2009
IEP offered a FAPE.
E. Reimbursement
A parent or guardian is “entitled to reimbursement only
if a federal court concludes both (1) that the public placement
violated the IDEA, and (2) that the private school placement
was proper under the Act.” Cty. of San Diego v. Cal. Special
Educ. Hearing Office, 93 F.3d 1458, 1466 (9th Cir. 1996)
(citing Florence Cty. Sch. Dist. 4 v. Carter, 510 U.S. 7
(1993)). “If both criteria are satisfied, the district court must
then exercise its ‘broad discretion’ and weigh ‘equitable
considerations’ to determine whether, and how much,
reimbursement is appropriate.” C.B. ex rel. Baquerizo v.
Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1159 (9th
Cir. 2011) (quoting Carter, 510 U.S. at 15–16).
Because we affirm the district court’s conclusion that the
public placement offer in the June 2009 IEP did not violate
the IDEA, it was proper for the ALJ and the district court to
deny reimbursement.
II. June 2011 IEP
A. Procedural Violations
Before the ALJ, Guardian presented a laundry list of
violations of the IDEA that Garden Grove allegedly
committed with regard to the June 2011 IEP. ALJ Ruff
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carefully walked through each alleged violation, and
concluded that none was meritorious. On appeal, Guardian
only asserts two arguments: that Garden Grove failed to
assess Carlos for anxiety, and that “[n]o baselines were
determined” for Carlos’s speech and language goals.
As for the anxiety assessment, the ALJ noted that at the
June 2011 IEP meeting, “[t]he team discussed Student’s
anxiety, but did not propose an IEP goal related to anxiety for
Student.” The IEP meeting notes reflect that “Guardian stated
that Pliha knows how to handle [Carlos] and his anxiety,” and
that Carlos managed his anxiety by “tak[ing] deep breaths
and is also on medication.” The school psychologist, Dr.
Keller, testified that although he “noticed that Student was
intense about wanting to perform well,” he would not
“characterize that conduct as anxiety.” Based on that
information, Garden Grove “did not believe anxiety was a
significant area of need for Student as of the June 2011 IEP
meeting.”
The IDEA does not require the school district to conduct
all assessments possible; it requires school districts to decide
what data is needed to determine “the educational needs of
the child,” among other things. 20 U.S.C. § 1414(c)(1)(B). By
Guardian’s own admission at the IEP meeting, an assessment
of Carlos’s anxiety would not have significantly changed the
educational plan in the IEP, because Carlos’s anxiety was
being effectively managed by medication and breathing
exercises.
As to Carlos’s speech and language goals, the contention
before the agency (toward which Guardian only gestures in
her brief on appeal) was that Garden Grove did not have
enough specific information to create a baseline for Carlos in
20 BAQUERIZO V. GARDEN GROVE USD
order to build an appropriate goal. The ALJ noted that “a goal
generally requires a baseline,” but in this case, Carlos was
assessed by Ms. Pliha in his one-on-one setting. Both the
school district and Ms. Pliha could not gather the specific
data necessary to build a baseline in this context, because in
order to do so the district needed to observe Carlos’s
“conduct while engaged with peers.” ALJ Ruff concluded
that “under these highly unusual circumstances in which a
pupil was kept out of a classroom environment for
approximately four years,” the school district created an IEP
plan that was as concrete as possible with the available data.
And, like the June 2009 IEP, the June 2011 IEP provided for
a 30-day review period, during which the school district could
re-evaluate its plans for Carlos after observing him in the
Buena Park placement while engaged with peers. If Guardian
had accepted the Buena Park placement, the school district
would have been given the opportunity to create a more
concrete goal for Carlos’s speech and language needs.
B. FAPE
The Buena Park placement offer was a FAPE in the LRE
for Carlos, despite the fact that he would not have been
placed in a general education setting with typical peers.
Again, Ms. Pliha testified that Carlos would not benefit from
a general education setting; both Ms. Pliha and Garden Grove
representatives expressed concern that Carlos would have a
difficult time transitioning directly from an individualized
setting to a large classroom. Therefore, Garden Grove’s
proposed compromise—a small classroom setting at Buena
Park—represented a reasonable compromise to help Carlos
transition to a larger classroom. This conclusion is consistent
with the result of the fully and finally litigated dispute over
the 2010–2011 school year. The Myers-Cregar decision,
BAQUERIZO V. GARDEN GROVE USD 21
which was upheld by the Second Selna Decision and our
court, ruled that Buena Park was a FAPE for Carlos in 2010
for the express reason that Carlos would have a difficult time
transitioning into a general education classroom after
individualized education. This logic is even stronger when
applied to the June 2011 IEP, after Carlos had been
individually educated for yet another school year.
C. Reimbursement
Because we hold that the June 2011 IEP does not violate
the IDEA, Guardian is not entitled to reimbursement for
Carlos’s private educational expenses during that school year.
Cty. of San Diego, 93 F.3d at 1466.4
CONCLUSION
Because Garden Grove did not violate the IDEA in either
the June 2009 IEP or June 2011 IEP, the judgment of the
district court is AFFIRMED.
4
The district court properly excluded transcripts of the June 2009 IEP
meeting. ALJ Ruff listened to a recording of the entire meeting, and
Guardian has not shown that she was prejudiced by the exclusion of the
transcripts.