Misako Nakamura v. State of Hawaii, Department Of , 509 F. App'x 640 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 19 2013
MOLLY C. DWYER, CLERK
M.N., individually and on behalf of her No. 11-18037 U.S. COURT OF APPEALS
minor child, A.B.,
D.C. No. 1:11-cv-00121-SOM-
Plaintiff - Appellant, BMK
v.
MEMORANDUM*
STATE OF HAWAII, DEPARTMENT
OF EDUCATION and KATHRYN
MATAYOSHI, in her official capacity as
Acting Superintendent of the Hawaii
Public Schools,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, Chief District Judge, Presiding
Submitted February 11, 2013**
Honolulu, Hawaii
Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
Plaintiff M.N. appeals the district court’s ruling that she was not entitled,
under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C.
§§ 1400–1482, to reimbursement for her unilateral placement of her child in a
particular private school. Reviewing "de novo the appropriateness of a special
education placement," C.B. ex rel. Baquerizo v. Garden Grove Unified Sch. Dist.,
635 F.3d 1155, 1159 n.1 (9th Cir.), cert. denied, 132 S. Ct. 500 (2011), we affirm.
1. Plaintiff 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 [IDEA]." Id. at 1159 (alteration in
original) (internal quotation marks omitted). It is undisputed at this stage of the
proceedings that the public placement violated the IDEA; therefore, the only issue
is whether Plaintiff’s placement of her child in the private school was "proper."
A placement is "proper" if it "‘provides educational instruction specially
designed to meet the unique needs of a handicapped child, supported by such
services as are necessary to permit the child to benefit from instruction.’" Id.(quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 365 (2d Cir. 2006)). In C.B., we
upheld full reimbursement where a private program "provided significant
educational benefits," even though it did not meet all the child’s needs. Id.(emphasis added). But here, the educational benefits conferred were meager. The
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record reveals a host of essential areas in which the child made no progress at all
after more than a year in the private placement. Therefore, the district court did
not err when it concluded that the private placement was not proper.
2. Alternatively, the district court did not abuse its discretion when it denied
reimbursement on equitable grounds. See Forest Grove Sch. Dist. v. T.A., 523
F.3d 1078, 1084 (9th Cir. 2008) (reviewing for abuse of discretion a district court’s
determination under principles of equity to grant or deny reimbursement for private
school tuition), aff’d, 557 U.S. 230 (2009). There was evidence in the record that
both the private school and Plaintiff hindered the development of the child’s
Individualized Education Program through their uncooperativeness with public
school officials. Therefore, the district court did not abuse its discretion.
AFFIRMED.
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