Oliver C. v. Edu-Hi ( 2019 )

FILED
NOT FOR PUBLICATION
MAR 05 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OLIVER C., by and through his parents No. 17-17498
Nichole C. and Cyrus C.; NICHOLE C.;
CYRUS C., D.C. No.
1:17-cv-00133-LEK-KSC
Plaintiffs-Appellants,
v. MEMORANDUM*
STATE OF HAWAII DEPARTMENT OF
EDUCATION,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Argued and Submitted February 11, 2019
Honolulu, Hawaii
Before: TALLMAN, BYBEE, and N.R. SMITH, Circuit Judges.
Oliver C. is a preschool student who qualifies for special education services.
In September 2016, Oliver’s family moved from the Honolulu District to the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Windward School District across the island. The Windward Department of
Education (“DOE”) determined that Benjamin Parker Elementary in the Windward
District could implement Oliver’s Individualized Education Program (“IEP”). In
October 2016, Oliver’s parents objected to this determination and filed a request
for mediation and a due process hearing, and they sought a stay-put order from the
Office of Administrative Hearings for the Department of Commerce and Consumer
Affairs to allow Oliver to remain at his school in Honolulu during all proceedings.
On February 22, 2017, a Hearings Officer denied Oliver’s parents’ stay-put request
and held that Benjamin Parker was the appropriate placement for the 2016–2017
school year. The district court affirmed.
On appeal, Oliver’s parents argue that the Hearings Officer erred by denying
the stay-put order under § 1415(j) of the Individuals with Disabilities Education
Act (“IDEA”) because moving Oliver from Kuhio to Benjamin Parker would
significantly change his educational placement. “We review de novo the district
court’s determination as to whether the school district complied with the IDEA,”
Meridian Joint Sch. Dist. No. 2 v. D.A., 792 F.3d 1054, 1059 (9th Cir. 2015), and
review “a district court’s findings of fact in an IDEA case for clear error,” M.L. v.
Fed. Way Sch. Dist., 394 F.3d 634, 642 (9th Cir. 2005). We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
2
The IDEA’s stay-put provision states that “during the pendency of any
proceedings conducted [under the IDEA] . . . [a] child shall remain in [his]
then-current educational placement.” 20 U.S.C. § 1415(j). We define “current
educational placement” as “the placement set forth in the child’s last implemented
IEP.” N.E. ex rel. C.E. & P.E. v. Seattle Sch. Dist., 842 F.3d 1093, 1096 (9th Cir.
2016) (citation omitted). A change in location alone does not qualify as a change
in “educational placement.” Rather, a change in placement occurs “when there is a
significant change in the student’s program.” N.D. v. Haw. Dep’t of Educ., 600
F.3d 1104, 1116 (9th Cir. 2010); see also U.S. Dep’t of Educ., Policy Letter to
Fisher, 21 IDELR 992, 995 (OSEP July 6, 1994) (“[A] change in location alone
would not substantially or materially alter the child’s educational program.”).
The record supports the Hearings Officer’s factual findings and
determination that Benjamin Parker could implement Oliver’s IEP and that it did
not constitute a change in educational placement. See K.D. ex rel. C.L. v. Dep’t of
Educ., Haw., 665 F.3d 1110, 1117 (9th Cir. 2011) (“We give deference to the state
hearing officer’s findings particularly when, as here, they are thorough and
careful.” (citing Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir.1994))).
Oliver’s parents’ additional arguments fail. First, they received proper prior
written notice as required by 20 U.S.C. § 1415(b)(3) because, in addition to
3
discussing the changes on the phone and at the September 26th meeting, the DOE
sent Oliver’s parents a letter providing official notice of the school change on
October 6th, which they received on the 8th. Regardless, § 1415(b)(3)(A) requires
the DOE to provide the parents with written notice when it “proposes to initiate or
change . . . [the] educational placement of the child.” As explained, changing
schools did not change Oliver’s “educational placement” for purposes of this
section. Second, Oliver’s parents were not denied meaningful participation
because they were able to present evidence, attend the meetings, and express their
opinions—the fact that they did not agree with the final decision does not mean
they were not able to meaningfully participate. Third, the DOE did not
“predetermine” Oliver’s placement; it considered other potential schools in the
Windward District but found they would not accommodate Oliver’s IEP. And
fourth, the DOE did not change Oliver’s placement solely for its own convenience.
As the district court noted, the decision to move Oliver to Benjamin Parker was
based on several factors, including the extended transportation time between his
home and Kuhio that would limit the instructional hours required in his IEP, and
the possibility of a medical emergency during the long bus ride. The district court
did not err in affirming the Hearings Officer’s decision that Benjamin Parker can
accommodate Oliver’s IEP and thus is the appropriate placement.
4
AFFIRMED.
5