R. B. v. Edu-Hi ( 2019 )

NOT FOR PUBLICATION FILED
MAY 9 2019
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT 1
R. E. B., individually and on behalf of his No. 14-15895
minor child, J.B.,
D.C. No.
Plaintiff-Appellant, 1:13-cv-00016-DKW-BMK
v.
MEMORANDUM*
STATE OF HAWAII DEPARTMENT OF
EDUCATION and KATHRYN
MATAYOSHI, in her official capacity as
Superintendent of the Hawaii Public
Schools,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Argued February 23, 2017; Submitted April 3, 2018
Honolulu, Hawaii
Before: HAWKINS, BEA, and NGUYEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
This case concerns J.B.’s transition from Pacific Autism Center (“PAC”), a
small private school for students with autism and other special needs, into a Hawaii
public school named Koko Head Elementary School (“Koko Head”). During that
time, Hawaii Department of Education (“DOE”) personnel convened to develop an
Individualized Education Plan (“IEP”) for J.B.’s transition. J.B.’s father, R.E.B.,
raised various objections to J.B.’s proposed IEP, but the administrative hearings
officer found that his IEP was adequate. The district court affirmed. R.E.B. then
appealed to this court. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
1. As a threshold matter, DOE claims this case is moot because J.B.
received relief beyond that originally requested. But a case is moot “only when it
is impossible for a court to grant any effectual relief whatever to the prevailing
party.” Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 609 (2013) (quoting Knox v.
Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307 (2012)). While R.E.B.
initially sought reimbursement of PAC tuition for the 2012–2013 school year,
which DOE provided, his due process complaint also sought reimbursement for
transportation and compensatory education, which he never received. Because it is
still possible for us to grant effectual relief, this case is not moot.
2. Next, R.E.B. contends that DOE violated the Individuals with Disabilities
Education Act (“IDEA”) because it denied J.B. a free appropriate public education
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(“FAPE”). We review the district court’s factual findings for clear error and its
legal conclusions, including whether an IEP provides a FAPE, de novo. Doug C.
v. Haw. Dep’t of Educ., 720 F.3d 1038, 1042 (9th Cir. 2012).
“A FAPE must be ‘tailored to the unique needs of the handicapped child by
means of an [IEP].’” M.C. v. Antelope Valley Union High Sch. Dist., 858 F.3d
1189, 1194 (9th Cir. 2017) (quoting Hendrick Hudson Cent. Sch. Dist. Bd. of Educ.
v. Rowley, 458 U.S. 176, 181 (1982)). To constitute a denial of a FAPE,
procedural errors must “result in the loss of educational opportunity, or seriously
infringe the parents’ opportunity to participate in the IEP formulation process.”
Doug C., 720 F.3d at 1043 (quoting Shapiro v. Paradise Valley Unified Sch. Dist.
No. 69, 317 F.3d 1072, 1078 (9th Cir. 2003), superseded on other grounds by 20
U.S.C. § 1414(d)(1)(B)). Substantively, the court must determine whether the IEP
was “reasonably calculated to enable the child to receive educational benefits.” Id.
(internal quotation marks omitted). To satisfy the “educational benefit”
requirement, DOE must “provid[e] personalized instruction with sufficient support
services to permit the child to benefit educationally from that instruction.”
Anchorage Sch. Dist. v. M.P., 689 F.3d 1047, 1057 (9th Cir. 2012) (quoting
Rowley, 458 U.S. at 203).
R.E.B. first argues that DOE violated the IDEA by failing to address his
concerns about J.B.’s transition from PAC to Koko Head. Particularly, R.E.B.
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complains that J.B.’s IEP did not specify where J.B.’s summer 2012 Extended
School Year (“ESY”) services would take place when J.B. was transitioning from
PAC to Koko Head.
DOE sufficiently addressed R.E.B.’s concerns about J.B.’s transition
services. Although J.B.’s IEP did not specify where J.B.’s summer 2012 ESY
services would take place, his IEP listed his current school as Koko Head.
Additionally, the IDEA does not require that an IEP list the specific school where
summer transition services will take place. See 20 U.S.C. § 1414(d)(1)(A).
Further, while R.E.B. and DOE worked together to develop J.B.’s IEP, DOE
listened to R.E.B.’s concerns about J.B.’s transition and tried to address them at a
“transfer plan meeting” held on June 13, 2012. Koko Head’s principal stated that
the meeting’s purpose was “to consider [J.B.’s] possible needs to minimize
potential harmful effects in the transfer from PAC to a DOE public school
campus.” The school district decided at that meeting that, to ease J.B.’s transition,
J.B. would gradually transition during the summer from PAC to public school and
would not be “mainstreamed” (educated in a general education setting with
nondisabled peers) during this summer transition. DOE decided that this gradual
transition would help avoid anxiety that could overwhelm J.B. Thus, DOE
responded to R.E.B.’s concerns about J.B.’s transition and made a plan to facilitate
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that transition that would help J.B. adapt to his new school. Therefore, DOE did
not violate the IDEA by failing to address R.E.B’s concerns.
3. R.E.B. also contends that DOE violated the IDEA because J.B.’s IEP did
not specify the Least Restrictive Environment (“LRE”) for J.B. The IDEA states
that children with disabilities should be placed in the LRE:
To the maximum extent appropriate, children with disabilities,
including children in public or private institutions or other care
facilities, are educated with children who are not disabled, and special
classes, separate schooling, or other removal of children with
disabilities from the regular educational environment occurs only when
the nature or severity of the disability of a child is such that education
in regular classes with the use of supplementary aids and services
cannot be achieved satisfactorily.
20 U.S.C. § 1412(a)(5)(A). Regulations interpreting the IDEA state that the IEP
must include “[a]n explanation of the extent, if any, to which the child will not
participate with nondisabled children in the regular class.” 34 C.F.R.
§ 300.320(a)(5).
J.B.’s IEP states that J.B.
will not participate with non-disabled peers for Reading, Writing, Math,
Science, Social Studies, Speech/Language Therapy and Occupational
Therapy. [J.B.] will participate with non-disabled peers for Library,
Music, PE, Art, Computer, Hawaiian Studies, Mandarin, recesses,
lunch, field trips, assemblies and school-wide activities. [J.B.] will also
receive specialized instruction in the general education setting for
Science and Social Studies activities as deemed appropriate by his
Special Education teacher/Care Coordinator and General Education
teacher.
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This explanation sufficiently specifies the LRE for J.B. under the IDEA because
J.B.’s IEP team (which included J.B.’s public school principal, future teachers, and
R.E.B.) decided for all academic subjects, as a general matter, whether J.B. would
participate with nondisabled peers. The IEP then delegated to J.B.’s teachers the
decision to have J.B. participate with nondisabled peers for certain “Science and
Social Studies activities” even though, as a general matter, J.B. would not
participate with nondisabled peers for these subjects. This nuanced determination
was reasonable because, as part of the Science and Social Studies curriculums,
elementary school students often perform experiments, simulations, and field
trips—the activities to which the IEP alluded. Given J.B.’s autism, it was
reasonable for the IEP team to conclude that he would be able to participate
successfully with nondisabled peers for some of these activities, but not for others,
and that those activities that would be proper for J.B. could not be determined at an
IEP meeting months or years before those activities happened. Therefore, it was
reasonable for J.B.’s IEP to specify that J.B.’s “Special Education teacher/Care
Coordinator and General Education teacher” would decide together which
particular activities J.B. would participate in with nondisabled peers with the
benefit of specialized instruction. Particularly in light of the fact that the IDEA
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provides that the LRE should be specified “[t]o the maximum extent appropriate,”
20 U.S.C. § 1412(a)(5)(A), J.B.’s IEP satisfied the IDEA’s LRE requirement.1
4. R.E.B. contends that the IDEA required DOE to specify in J.B.’s IEP that
his one-on-one aide would have the same qualifications as a contracted skills
worker. But “nothing in [20 U.S.C. § 1414(d)] indicates that an IEP must specify
the qualifications or training of service providers.” S.M. v. Haw. Dep’t of Educ.,
808 F. Supp. 2d 1269, 1274 (D. Haw. 2011); see also 20 U.S.C.
§ 1414(d)(1)(A)(i)(IV) (requiring only that an IEP include a statement of the
“supplementary aids and services . . . to be provided to the child”); HAW. CODE R.
§ 8-60-44(a)(4) (same). Nor does the record establish that DOE even agreed to
provide an aide with such qualifications at the IEP meeting.
1
DOE also sufficiently considered the Rachel H. balancing factors, which
school districts use to assess whether a child should be educated with nondisabled
peers or with other disabled peers. See Sacramento City Unified Sch. Dist., Bd. of
Educ. v. Rachel H. ex rel. Holland, 14 F.3d 1398, 1404 (9th Cir. 1994). These
factors include “(1) the educational benefits of placement full-time in a regular
class; (2) the non-academic benefits of such placement; (3) the effect [the child
has] on the teacher and children in the regular class; and (4) the costs of
mainstreaming [the student].” Id.
As the district court concluded, the IEP team “engaged in a thorough
analysis that incorporated all four of the Rachel H. factors.” Notes from, and an
audio recording of, the May 7, 2012, IEP meeting confirm that the district court
was right. The IEP team discussed the Rachel H. factors for nearly an hour at an
IEP meeting. During this time, the members of the IEP team completed a
worksheet that helped the team understand how the different Rachel H. factors cut
in favor of educating J.B. with nondisabled peers or with other disabled peers.
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5. Finally, R.E.B. contends that DOE violated the IDEA by not specifying
the use of Applied Behavioral Analysis (“ABA”) methodology in J.B.’s IEP. At
PAC, J.B.’s teachers used ABA, a teaching methodology for students with autism.
R.E.B. wanted DOE to specify in J.B.’s IEP that ABA methodology would be used
with J.B. At an IEP meeting on May 9, 2012, J.B.’s father directly stated that he
expressed a strong preference for “pure VB-MAPP,” a particular type of ABA
methodology. However, at that meeting, J.B.’s future teachers stated that they
thought it was best to use multiple methodologies with J.B. A special education
teacher stated that she would “work[] off the data submitted by PAC,” and then
described a number of methodologies she would use with J.B., including “natural
environment training,” “things they use in [occupational therapy] and speech
[therapy],” and “[various] reinforcers and motivators.” The principal and the
teachers explained that they did not want to specify ABA methodology in the IEP
because the teachers wanted to use more than one methodology. As a result, J.B.’s
IEP did not specify any particular methodology.
DOE was not required to specify ABA methodology in J.B.’s IEP. While
we recognized in J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 952 (9th Cir.
2009), that “school districts should specify a teaching methodology for some
students” in their IEPs, we did not provide much guidance beyond stating that
doing so is necessary for some students. The facts of J.L., however, suggest that
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DOE was not required to specify ABA methodology in J.B.’s IEP. In J.L., “[t]he
District . . . declined to name a particular teaching methodology to be utilized by
all teachers because its experts recommended several effective programs, not just a
single ‘right’ choice.” Id. at 945. After the district court held that the school
district committed a procedural violation of the IDEA in so doing, we reversed. Id.
at 952, 954. As we explained:
We accord deference to the District’s determination and the ALJ’s
finding that [the student’s] teachers needed flexibility in teaching
methodologies because there was not a single methodology that would
always be effective. We hold that the District did not commit a
procedural violation of the Individuals with Disabilities Education Act
by not specifying teaching methodologies in [the student’s]
individualized educational programs[.]”
Id. at 952. This case is similar. J.B.’s teachers thought it was best to use multiple
teaching methodologies with J.B. They wanted the flexibility to select the
methodology that best fit J.B.’s needs as they arose. Given this precedent and the
deference we owe to J.B.’s teachers who thought it was best to use multiple
teaching methodologies, we hold it was not necessary for J.B.’s IEP to specify that
the ABA methodology would be used. Therefore, DOE did not deny J.B. a FAPE
and did not violate the IDEA.
AFFIRMED.
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