M.L. v. Federal Way School ( 2005 )

Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
M.L., a minor; C.D., his parent;  No. 02-35547
S.L., his parent, D.C. No.
Petitioners-Appellants, CV-01-00899-JCC
v. ORDER
FEDERAL WAY SCHOOL DISTRICT; AMENDING
WASHINGTON SUPERINTENDENT OF OPINION AND
PUBLIC INSTRUCTION,  DENYING
Respondents-Appellees. PETITION FOR
REHEARING AND
PETITION FOR
REHEARING EN
BANC AND
AMENDED
 OPINION
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, Chief Judge, Presiding
Argued and Submitted
August 7, 2003—Seattle, Washington
Filed November 5, 2004
Amended January 14, 2005
Before: Arthur L. Alarcón, Ronald M. Gould, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Alarcón;
Concurrence by Judge Gould;
Dissent by Judge Clifton
585
588 M.L. v. FEDERAL WAY SCHOOL DISTRICT
COUNSEL
James E. Lobsenz, Carney Badley Spellman, P.S., Seattle,
Washington, for the petitioners-appellants.
Christopher L. Hirst, Preston Gates & Ellis LLP, Seattle,
Washington; James J. Dionne, Dionne & Rorick, Seattle,
Washington, for the respondents-appellees.
M.L. v. FEDERAL WAY SCHOOL DISTRICT 589
ORDER
This court’s opinion, filed November 5, 2004, is amended
as follows:
Insert footnote 9 to Section II slip op. at 15673, 387 F.3d
at 1116, after the words “at least one regular education teach-
er.”
The new footnote 9 reads as follows:
Although I would apply the structural error analy-
sis outlined above, I recognize that a majority of the
panel has adopted a harmless error test instead. How
harmless error review is to be conducted is therefore
squarely presented. Therefore, I believe I should
address the issue so that future panels confronted
with it will have an expression of each of our views
on this question.
I cannot agree with Judge Clifton’s analysis
because he relies on the ALJ’s and the district
court’s findings that the placement made by the pro-
cedurally defective IEP team was, nevertheless,
harmless because it was the best placement for M.L.
See infra at 15693-94 (Clifton, J. dissenting). This
approach rewards procedural non-compliance and is
at odds with the Supreme Court’s holding that the
IDEA seeks to achieve its substantive ends largely
through procedural means:
[T]he importance Congress attached to
[the Act’s] procedural safeguards cannot
be gainsaid. . . . We think that the congres-
sional emphasis upon full participation of
concerned parties throughout the develop-
ment of the IEP . . . demonstrates the legis-
lative conviction that adequate compliance
590 M.L. v. FEDERAL WAY SCHOOL DISTRICT
with the procedures prescribed would in
most cases assure much if not all of what
Congress wished in the way of substantive
content in an IEP.
Rowley, 458 U.S. at 205-06 (emphasis added).
Judge Clifton recognizes that Rowley mandates a
two-step analysis. See infra at 15694 (Clifton, J., dis-
senting). Nevertheless, he appears to have jumped to
the substantive second step to resolve the procedural
first step, effectively circumventing the two-step
process.
Even under the harmless error standard of review
adopted by the majority, it is my view that loss of an
educational opportunity cannot be determined by
considering the merits of the placement identified in
the IEP. Instead, it must be determined by whether
the failure to include at least one regular education
teacher, as expressly mandated by Congress, had a
material and inherently harmful impact on the ability
of the defective IEP team to develop a program that
was reasonably calculated to enable M.L. to receive
educational benefits. Thus, I believe the school dis-
trict’s procedural error was not harmless.
At slip op. 15689, 387 F.3d at 1124 n.1, modify the foot-
note by adding the following sentence after the first three sen-
tences of the footnote following the words “and the
conclusion” such that the footnote reads:
To be precise, while I agree with the main point of
Section II-C, which is that the school district vio-
lated the procedural requirements of the IDEA, I do
not join in the last sentence of that section. In that
sentence Judge Alarcón applies the “structural
defect” analysis contained in Section II-B of his
M.L. v. FEDERAL WAY SCHOOL DISTRICT 591
opinion to reach the conclusion that the district
court’s judgment must be reversed. I disagree with
both the structural defect approach and the conclu-
sion. Nor do I join in the footnote accompanying that
sentence.
Insert a new footnote 3 (renumber subsequent footnotes
accordingly) at slip op. 15695, 387 F.3d at 1127, at the end
of the sentence “That being so, the district court properly held
that even if there had been error in the composition of the IEP
team, M.L. had not been denied a free, appropriate educa-
tion.”
The new footnote 3 reads as follows:
Judge Alarcón takes issue with my reliance on the
district court’s finding, not because he challenges the
finding itself, but because he disagrees with my reli-
ance upon that finding to conclude that the proce-
dural error here was harmless. He criticizes my
approach as being “at odds with” the two-step
inquiry set forth in Supreme Court’s decision in
Rowley (and quoted in the text above), arguing that
I have jumped to the substantive second step in order
to circumvent the procedural first step. Ante at _____
n.9. I respectfully disagree. I give the same answer
to the first Rowley question as both of my colleagues
do: no, the school district has not complied with the
procedures set forth in the Act. But Rowley does not
say what happens when the answer to the first ques-
tion is “no.” Our court has previously held, and a
majority of this panel holds again here, that a proce-
dural error violates the Act only when it results in a
lost educational opportunity for the child. There is
nothing in Rowley which precludes consideration of
the substantive impact on the child in determining
whether there has been a lost educational opportu-
nity due to a procedural error. Nor does my approach
592 M.L. v. FEDERAL WAY SCHOOL DISTRICT
involve the second Rowley question. Instead, the dis-
trict court applied what I described above as a
“tougher substantive standard.” The second question
under Rowley asks only whether the program was
“reasonably calculated” to enable the child to receive
educational benefits. The district court went beyond
that here to find something more, that the proposed
plan was the best program for M.L. That finding
relates to the second step of Rowley in that it consid-
ers the substantive impact on the child rather than
the procedural process employed to create the plan,
but it is not the same inquiry.
With these amendments, Judge Alarcón and Judge Gould
have voted to deny the petition for rehearing. Judge Clifton
has voted to grant the petition for rehearing.
Judge Gould has voted to deny the petition for rehearing en
banc. Judge Alarcón recommends that the petition for rehear-
ing en banc be denied. Judge Clifton has voted to grant the
petition for rehearing en banc.
The full court has been advised of the petition for rehearing
en banc. No judge has requested a vote on whether to rehear
the matter en banc. Fed. R. App. P. 35.
The petition for rehearing and the petition for rehearing en
banc are Denied. No further petitions for rehearing will be
entertained.
OPINION
ALARCÓN, Senior Circuit Judge:
M.L., a minor, C.D., his mother, and S.L., his father, appeal
from the order granting the motions for summary judgment
M.L. v. FEDERAL WAY SCHOOL DISTRICT 593
filed by Appellees, the Federal Way School District
(“FWSD”) and the Washington Superintendent of Public
Instruction.1 They contend, inter alia, that the failure of the
FWSD to include a regular education teacher on the team that
prepared M.L.’s individualized education program (“IEP”)
rendered the IEP invalid.
I am persuaded that we must reverse the order granting
summary judgment because the failure of the FWSD to
include a regular education teacher on the IEP team signifi-
cantly deviated from the procedural requirements of the Indi-
viduals with Disabilities Education Act (“IDEA”) that at least
one regular education teacher be included in the development
of an IEP for a student with a disability pursuant to 20 U.S.C.
§ 1414(d)(1)(B)(ii). This critical structural defect in the con-
stitution of the IEP team precludes us from considering
whether the IEP developed without the inclusion of at least
one regular education teacher was reasonably calculated to
enable M.L. to receive a free and appropriate public education
(“FAPE”). I believe we must vacate the judgment and remand
with instructions that the district court enter an order directing
the FWSD to select an IEP team that complies with the proce-
dural requirements of the IDEA.
Judge Gould has filed a separate concurring opinion in
which he joins me in concluding that the omission of a regular
classroom teacher from M.L.’s IEP team was a procedural
error and that we must reverse the district court’s order grant-
ing a summary judgment. Judge Gould has applied the harm-
less error standard of review, instead of the structural defect
1
The complaint in this matter named the Washington Superintendent of
Public Instruction (“SPI”) as a party to this action. The district court
granted summary judgment in favor of the SPI on the basis that the claim
was “premature.” While the notice of appeal refers to the order granting
summary judgment to “respondent,” the Appellants have not raised any
issue challenging the merits of the summary judgment order in favor of the
SPI. Thus, it would appear that the Appellants have abandoned their
appeal regarding the SPI.
594 M.L. v. FEDERAL WAY SCHOOL DISTRICT
analysis I have employed, in concluding that the judgment
must be reversed.
In his dissent, Judge Clifton agrees with Judge Gould that
the harmless error test must be applied in this matter, but con-
cludes that the school district’s error in failing to include a
regular classroom teacher on the IEP team, as required by the
IDEA, was harmless error, and did not result in the loss of an
educational opportunity for M.L., or deny him a free appropri-
ate public education.
I
Unless otherwise indicated, the facts are undisputed. M.L.
was born on November 13, 1994. He suffers from autism,
mental retardation, and macrocephaly.2 As of February 2001,
he was globally delayed across all developmental domains
consistent with his cognitive level, and displayed significant
behavioral problems. M.L. was almost completely nonverbal,
had virtually no communication skills, was not toilet trained,
and had a cognitive ability that placed him in the first percen-
tile on the Battelle Developmental Inventory.3
Dr. Ilene Schwarz, an expert regarding educational prac-
tices for children with autism, indicated that M.L. might be
able to perform tasks with a familiar service provider, but
would be unable to demonstrate those skills when asked to do
so in another environment. M.L. had made gains in physical
therapy between 1997 and 2000. The progress reports from
Puget Sound Therapy Services indicate, however, that as of
2
Macrocephaly is a condition that causes the distance around the widest
part of the skull to be greater than expected for the age and background
of the child.
3
The Battelle Developmental Inventory Screening Test is administered
to children six months to eight years old and includes subtests which mea-
sure fine and gross motor, adaptive, personal-social, receptive and expres-
sive language, and cognitive skills.
M.L. v. FEDERAL WAY SCHOOL DISTRICT 595
August 2000, M.L. frequently had temper tantrums and dis-
played aggressive behavior such as hitting and pinching,
which interfered with his performance in therapy. M.L.’s
occupational therapist recommended that M.L. would benefit
from a more structured environment.
M.L. was enrolled in the Tukwila Preschool at the Riverton
Park United Methodist Church in the Tukwila School District
in November 1997. He attended preschool four days per week
for approximately two hours per day for three years. Except
for a few months in his third year, M.L. was continuously
assigned to Jodie Wicks’s integrated preschool class until
June 2000.4 The class followed the same routine each day,
using the same songs and activities. Each year the class also
included several of the same students and the same instruc-
tional assistants.
M.L.’s skills improved over the course of his three years in
Ms. Wicks’s preschool class. M.L. began to interact more fre-
quently with other children and participated, to a limited
extent, in classroom activities. M.L. was teased a few times
while enrolled there. During the three years he was enrolled
in Ms. Wicks’s class, he was assigned a one-on-one instruc-
tional assistant who remained with him throughout the day.
M.L. displayed increasingly aggressive behavior during
that time. This conduct was documented by many of his ser-
vice providers. His level of aggression escalated when he was
frustrated or given more challenging tasks. He would cry,
whine, or bite and scratch his instructional assistant. He
mouthed many objects and on at least one occasion bit
another child. Lai Doo, M.L.’s in-home therapist, testified
that as M.L.’s level of communication increased, his level of
aggression decreased. However, Ms. Doo also stated that
4
An “integrated” or “regular” classroom consists of both typically
developing children and a small number of disabled children. They are
taught by a “regular education” teacher.
596 M.L. v. FEDERAL WAY SCHOOL DISTRICT
M.L.’s “level of aggression seem[ed] to be a lot more severe
than the others that [she had] seen.”
Because M.L. is disabled, the Tukwila School District was
required by 20 U.S.C. § 1414(d)(1)(A) to create an IEP each
year that stated M.L.’s “present levels of educational perfor-
mance,” outlined the “special education and related services
. . . to be provided to [M.L.],” and set forth “measurable
annual goals.” On January 31, 2000, the Tukwila School Dis-
trict’s IEP team prepared an IEP for M.L.’s initial placement
for the 2000-2001 academic year (“Tukwila IEP”). Ms.
Wicks, M.L.’s preschool teacher, was a member of the IEP
team. The IEP provided that M.L. was to be enrolled in Sep-
tember 2000 in an integrated kindergarten class for 130 min-
utes, four times per week, and was to receive additional
therapy and instructional services.
Prior to M.L.’s enrollment in an integrated kindergarten
class in the Tukwila School District, M.L. and his family
moved to the FWSD on or about July 30, 2000. M.L. was
enrolled at the Mark Twain Elementary School in the FWSD.
The FWSD implemented the Tukwila IEP for M.L. until it
was due to expire on September 30, 2000. Accordingly, M.L.
was placed in Sandy Ramsey’s integrated kindergarten class
in the Mark Twain Elementary School. Ms. Ramsey is certi-
fied as a regular and special education teacher.
At C.D.’s suggestion, Ms. Ramsey controlled M.L.’s
behavior in class by letting him listen to his favorite music on
his headphones. The FWSD hired a series of one-on-one
instructional assistants to work with M.L. Each of them quit
after working with him for one day.
C.D. attended class with M.L. during the five days that
M.L. was enrolled at the Mark Twain Elementary School. On
September 5, 2000, C.D. witnessed two boys teasing M.L.
She discussed this incident with Ms. Ramsey and Pat Warden,
Ms. Ramsey’s classroom assistant. Ms. Ramsey responded
M.L. v. FEDERAL WAY SCHOOL DISTRICT 597
that she “would make a note and make it a priority to keep
observing—keep an eye on these children and a better eye on
[M.L.] to see if anything continued to happen so she could
address any incidents that might happen.” On September 6,
2000, C.D. observed more children teasing M.L. at recess.
She reported this conduct to Ms. Ramsey and Ms. Warden.
C.D. later testified, however, that M.L. was “happy as a little
lark” during recess.
On September 7, 2000, C.D. again observed children teas-
ing M.L. at recess and during class time. She discussed this
conduct with Ms. Ramsey. Ms. Ramsey told C.D. that she
“had not witnessed any teasing of M.L. during class, but
would continue to watch for it and intervene if necessary.”
Ms. Ramsey informed C.D. that “policies were in place
regarding teasing and that she did not allow such behavior in
her class.”
C.D. witnessed additional teasing incidents on September
8 and September 11, 2000. She reported these events to Ms.
Ramsey. Ms. Ramsey replied that “she would keep an eye on
[M.L.] and would take care of it.” Ms. Ramsey did not take
any action regarding the teasing incidents. C.D. testified that
there was no evidence that M.L. was actually affected by the
teasing and that “because he had his headphones on most of
the time he was being teased . . . [she] didn’t know if he even
heard it.”
On September 12, 2000, C.D. called Diane Niksich-Conn,
the Vice-Principal of the Mark Twain Elementary School, to
report a teasing incident that had occurred the previous day.
Vice-Principal Niksich-Conn suggested that C.D. contact Ms.
Ramsey. Ms. Niksich-Conn then contacted Ms. Ramsey and
advised her to talk to C.D.
On September 13, 2000, Ms. Ramsey telephoned C.D. to
discuss her complaint that M.L. had been teased on Septem-
ber 11, 2000. Ms. Ramsey informed C.D. that the teasing that
598 M.L. v. FEDERAL WAY SCHOOL DISTRICT
took place on September 11, 2000 was the only incident that
she had observed. Ms. Ramsey testified that during that con-
versation, she requested that C.D. give her an opportunity to
stop the teasing of M.L. by other children before C.D. took
the matter further. M.L. did not return to the Mark Twain Ele-
mentary School after September 11, 2000. C.D. did not speak
with the FWSD administrator before removing her child from
the school.
On or about September 17, 2000, the FWSD offered to
place M.L. at the Wildwood Elementary School in a self-
contained classroom5 taught by Teresa Thomas, a certified
special education teacher with experience teaching autistic
children. C.D. refused to enroll M.L. in the Wildwood Ele-
mentary School because she believed that a self-contained
classroom would not provide for sufficient participation with
regular education students. She thought that “it could be
potentially dangerous for [M.L.]” to interact with the other
students in the self-contained classroom. C.D. did not visit
Ms. Thomas’s classroom at any time.
After the Tukwila IEP expired on September 30, 2000, a
multidisciplinary team met on October 6, 2000, to determine
whether M.L. should be provided special education services
in the FWSD.6 A school psychologist, a speech and language
5
A “self-contained” classroom consists of only disabled students.
6
See 20 U.S.C. § 1414(a)(1)(A)-(B):
(1) Initial evaluations
(A) In general
A State educational agency, other State agency, or local edu-
cational agency shall conduct a full and individual initial
evaluation, in accordance with this paragraph and subsection
(b) of this section, before the initial provision of special edu-
cation and related services to a child with a disability under
this subchapter.
(B) Procedures
M.L. v. FEDERAL WAY SCHOOL DISTRICT 599
pathologist, an occupational therapist, and C.D. participated
in the initial evaluation. No regular education teacher partici-
pated in this assessment. In addition to observing M.L. for
two hours, and interviewing C.D., the initial evaluation con-
sisted of extensive review of records from providers identified
by C.D. and the Tukwila IEP. The school psychologist also
interviewed Ms. Wicks.
The group produced a report (“Evaluation Report”) that
recommended that M.L. be placed in a special education pro-
gram that offered a small class size, provided visual supports,
and predictable and consistent schedules and routines. On or
about October 25, 2000, Dr. Sarah Drinkwater, FWSD’s
director of student support services, offered to place M.L. at
the Wildwood Elementary School, the Mark Twain Elemen-
tary School, or several other schools within the FWSD. C.D.
rejected each of these suggestions. On October 27, 2000,
Appellants filed a written objection to the Evaluation Report.
They also requested that the FWSD provide for an indepen-
dent evaluation of M.L. at public expense. In response, the
FWSD filed a request for a due process hearing.
On November 1, 2000, Dr. Lee Saffrey, a FWSD program
specialist, mailed Appellants a letter proposing an IEP meet-
ing for November 13, 2000 at 8:00 a.m. at the Wildwood Ele-
mentary School. C.D. faxed a letter to Dr. Saffrey on
November 1, 2000, in which she stated that she would not
attend any IEP meetings unless “the staff from [her] child’s
neighborhood school (Starlake Elementary)” were present and
only if the meetings were held at the FWSD administration
offices or the Starlake Elementary School. C.D. also indicated
Such initial evaluation shall consist of procedures—
(i) to determine whether a child is a child with a disability
(as defined in section 1401(3) of this title); and
(ii) to determine the educational needs of such child.
600 M.L. v. FEDERAL WAY SCHOOL DISTRICT
that she would be available to attend an IEP meeting on
November 13, 2000 after 6:00 p.m. On November 2, 2000,
Dr. Saffrey notified C.D. that the location of the meeting had
been changed to the administrative offices of the FWSD and
that the meeting would occur at 4:00 p.m. on November 13,
2000. Dr. Saffrey also informed C.D. that Sarah Sapronari, a
regular education and special education teacher, would be a
member of the IEP team.
On November 6, 2000, C.D. faxed a letter to the FWSD in
which she stated that she would not be able to attend the pro-
posed IEP meeting at 4:00 p.m. on November 13, 2000. She
stated that she would be available between 4:15 a.m. and 5:15
a.m., or at 6:00 p.m. on any Tuesday, Wednesday, Thursday
or Friday, and at 7:00 p.m. or later on Mondays. She also sug-
gested meeting on Saturdays or Sundays. Dr. Saffrey notified
C.D. that an IEP meeting could be conducted only during the
day from 7:00 a.m. to 4:00 p.m. on any day Monday through
Friday. Dr. Saffrey informed C.D. that she could also partici-
pate via a conference call. C.D. replied on November 9, 2000,
that she would not be able to attend an IEP team meeting dur-
ing the hours and days suggested by Dr. Saffrey, nor could
she or her husband participate in a conference call on Novem-
ber 13, 2000.
The Administrative Law Judge (“ALJ”) found that the
assertion that M.L.’s parents could not attend the IEP meeting
at 4:00 p.m. was not credible. S.L.’s time sheet records from
his employer indicate that on November 13, 2000, his work-
day ended at 2:58 p.m. At the hearing before the ALJ, C.D.
testified that she was not able to attend the November 13,
2000 IEP team meeting at 4:00 p.m. or participate in a confer-
ence call because M.L. had an afternoon appointment on that
day with Northwest Behavioral Associates. She stated she left
home at 3:45 p.m. and did not return until 7:30 p.m. The ALJ
found that this testimony was not credible. C.D.’s fax
machine log reflected that C.D. sent a fax from her home on
M.L. v. FEDERAL WAY SCHOOL DISTRICT 601
November 13, 2000 at 5:05 p.m. The cover sheet was in
C.D.’s handwriting.
The FWSD IEP meeting was held on November 13, 2000,
at 4:00 p.m. Appellants did not attend. Ms. Thomas, a certi-
fied special education teacher assigned to the Wildwood Ele-
mentary School, was a member of the IEP team. However, no
regular education teacher participated in the IEP meeting or
evaluated the facts to determine whether the IEP was reason-
ably calculated to provide M.L. with a FAPE.
A letter written by Ms. Wicks, M.L.’s preschool teacher,
dated May 10, 2000, was considered by the IEP team. She
stated in this letter that “[M.L.] has made good progress in
this setting and exceptional gains in socialization.” She rec-
ommended that M.L. “remain[ ] in a general education kin-
dergarten classroom during his kindergarten year and that he
continue to be supported by a one-on-one assistant.”
After reviewing the Tukwila IEP, M.L.’s school records,
and Ms. Wicks’s recommendation, the FWSD IEP team con-
cluded that M.L. “would do better in a smaller setting with the
opportunity to work on specific skill areas” and recommended
placement in Ms. Thomas’s self-contained classroom at the
Wildwood Elementary School. The IEP provided for main-
streaming opportunities7 during lunch, recess, assemblies,
music, library, and school activities.
Ms. Thomas’s curriculum incorporated specialized strate-
gies for teaching autistic children. Ms. Thomas’s self-
contained classroom was smaller than an integrated kinder-
garten and was specially designed for students ranging from
kindergarten through sixth grade.
7
“Mainstreaming” is a term used to describe opportunities for disabled
students to engage in activities with non-disabled students.
602 M.L. v. FEDERAL WAY SCHOOL DISTRICT
The FWSD mailed a copy of the IEP to M.L.’s parents on
November 17, 2000. Dr. Drinkwater also enclosed a letter
offering M.L.’s parents the opportunity to discuss and refine
the IEP. M.L.’s parents did not do so, but instead requested
a due process hearing before an ALJ with the Department of
Education.
In February 2001, an eight-day due process hearing regard-
ing the appropriateness of the IEP was held before an ALJ
pursuant to the IDEA. The ALJ found that “the District’s
evaluation team was appropriately constituted.” The ALJ
denied Appellants’ motion for reconsideration.
Appellants sought review of the ALJ’s decision before the
United States District Court for the Western District of Wash-
ington pursuant to 20 U.S.C. § 1451(i)(2)(A). In their petition
for judicial review and complaint, Appellants alleged, inter
alia, that the FWSD failed to comply with the procedural safe-
guards provided for under 20 U.S.C. §§ 1400-15, 34 C.F.R.
§§ 300.1-.556, and Washington state law.
Appellants filed a motion for partial summary judgment in
which they alleged that the FWSD violated the procedural
requirements of the IDEA by failing to include a regular edu-
cation teacher on the IEP team. The FWSD filed a cross
motion for summary judgment. The district court denied
Appellants’ partial motion for summary judgment and granted
the FWSD’s motion. The district court found that because
M.L. was new to the school district, and not participating in
regular education classes at the time the IEP meeting took
place, “it [was] permissible to include only teachers [on the
IEP team] who are likely to be entrusted with him in the new
placement.” The district court also stated: “Even if the Court
were to find that the district’s failure to include a regular edu-
cation teacher of M.L.’s on the IEP team amounted to a pro-
cedural violation of the IDEA, such violation would not
necessarily constitute the denial of a FAPE.” Appellants filed
a timely notice of appeal on May 29, 2002. The district court
M.L. v. FEDERAL WAY SCHOOL DISTRICT 603
had jurisdiction pursuant to 20 U.S.C. § 1415(i)(2)(A). We
have jurisdiction pursuant to 28 U.S.C. § 1291.8
II
A.
In this appeal, Appellants contend that the FWSD’s failure
to include a regular education teacher on the IEP team was a
“significant violation” of the procedural requirements of the
IDEA and renders the IEP invalid to ensure that a disabled
child receives a FAPE. The FWSD argues in response that it
did not violate the procedural requirements of the IDEA that
at least one regular education teacher participate in evaluating
the factors to be considered in the preparation of an IEP
because three members of the team had “significant teaching
experience.” Appellees’ Brief at 15. No authority was cited
for this proposition. I construe this argument as a reluctant
concession that at least one regular education teacher was not
a member of the IEP team, as required by the IDEA. We
8
The FWSD filed a motion with this court on December 24, 2002,
requesting that we supplement the administrative record to include the tes-
timony of Diane Niksich-Conn. In their supplemental letter brief, Appel-
lants argue that normally a reviewing court will not supplement the record
with material not considered by the district court. We have previously
held, however, that “[i]n reviewing the record, this court must examine the
administrative record as a whole . . . .” Gonzalez v. Sullivan, 914 F.2d
1197, 1200 (9th Cir. 1990) (emphasis added); see also 20 U.S.C. § 1415(i)
(2)(B)(1) (stating that in reaching its decision, a reviewing court is
required to “receive the records of the [state] administrative proceedings”).
In addition, Rule 10(e) of the Federal Rules of Appellate Procedure allows
the record to be corrected if “anything material to either party is omitted
from or misstated in the record by error or accident.”
It is clear that Ms. Niksich-Conn’s testimony was erroneously omitted
from the administrative record considered by the district court. Since we
are required to consider the entire administrative record in determining
whether the district court erred in determining the appropriateness of a
special education placement, we grant the FWSD’s motion to supplement
the record.
604 M.L. v. FEDERAL WAY SCHOOL DISTRICT
review de novo whether a school district’s proposed IEP pro-
vides a FAPE under the IDEA. W.G. v. Bd. of Trustees, 960
F.2d 1479, 1483 (9th Cir. 1992) (“Target Range”). We review
a district court’s findings of fact in an IDEA case for clear
error. Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1310
(9th Cir. 1987).
The IDEA was enacted by Congress to assist state and local
agencies financially in educating students with disabilities.
Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1469 (9th Cir.
1993). Its goal is “to ensure that all children with disabilities
have available to them a free appropriate public education that
emphasizes special education and related services designed to
meet their unique needs and prepare them for employment
and independent living . . . .” 20 U.S.C. § 1400. The term
“free appropriate public education” is defined as “special edu-
cation and related services that . . . are provided in conformity
with the individualized education program required under sec-
tion 1414(d) of this title.” 20 U.S.C. § 1401(8). The term “in-
dividualized education program” is defined in the IDEA as “a
written statement for each child with a disability that is devel-
oped, reviewed, and revised in accordance with section
1414(d) of this title.” 20 U.S.C. § 1401(11).
Section 1412(6)(A) provides that “[c]hildren with disabili-
ties and their parents are afforded the procedural safeguards
required by section 1415 of this title.” 20 U.S.C.
§ 1412(6)(A). A state is required to “conduct a full and indi-
vidual initial evaluation . . . before the initial provisions of
special education and related services to a child.” 20 U.S.C.
§ 1414(1)(A).
[1] In § 1414(d)(1)(B), Congress set forth persons who
must be included on an IEP team to evaluate a disabled stu-
dent’s special educational needs. The statute provides as fol-
lows:
M.L. v. FEDERAL WAY SCHOOL DISTRICT 605
The term “individualized education program team”
or “IEP Team” means a group of individuals com-
posed of—
(i) the parents of a child with a disability;
(ii) at least one regular education teacher of
such child (if the child is, or may be, partic-
ipating in the regular education environ-
ment);
(iii) at least one special education teacher,
or where appropriate, at least one special
education provider of such child;
(iv) a representative of the local educational
agency who—
(I) is qualified to provide, or supervise
the provision of, specially designed
instruction to meet the unique needs of
children with disabilities;
(II) is knowledgeable about the general
curriculum; and
(III) is knowledgeable about the avail-
ability of resources of the local educa-
tional agency;
(v) an individual who can interpret the
instructional implications of evaluation
results, who may be a member of the team
described in clauses (ii) through (vi);
(vi) at the discretion of the parent or the
agency, other individuals who have knowl-
edge or special expertise regarding the
606 M.L. v. FEDERAL WAY SCHOOL DISTRICT
child, including related services personnel
as appropriate; and
(vii) whenever appropriate, the child with a
disability.
20 U.S.C. § 1414(d)(1)(B).
[2] The IDEA also provides that “[t]he regular education
teacher of the child, as a member of the IEP Team, shall, to
the extent appropriate, participate in the review and revision
of the IEP of the child.” 20 U.S.C. § 1414(d)(4)(B). The regu-
lations drafted to implement the IDEA contain the following
provisions:
The public agency shall ensure that the IEP team for
each child with a disability includes—
(1) The parents of the child;
(2) At least one regular education teacher of
the child (if the child is, or may be, partici-
pating in the regular education environ-
ment) . . . .
34 C.F.R. § 300.344(a).
In Appendix A to Part 300 of Title 34, the following com-
mentary explains the critical role of a regular education
teacher in developing an IEP:
Regular Education Teacher Participation in the
Development, Review, and Revision of IEPs
Very often, regular education teachers play a central
role in the education of children with disabilities (H.
Rep. No. 105-95, p. 103 (1997); S. Rep. No. 105-17,
p. 23 (1997)) and have important expertise regarding
M.L. v. FEDERAL WAY SCHOOL DISTRICT 607
the general curriculum and the general education
environment. Further, with the emphasis on involve-
ment and progress in the general curriculum added
by the IDEA Amendments of 1997, regular educa-
tion teachers have an increasingly critical role
(together with special education and related services
personnel) in implementing the program of FAPE
for most children with disabilities, as described in
their IEPs.
Accordingly, the IDEA Amendments of 1997 added
a requirement that each child’s IEP team must
include at least one regular education teacher of the
child, if the child is, or may be, participating in the
regular education environment (see § 300.344(a)(2)).
(See also §§ 300.346(d) on the role of a regular edu-
cation teacher in the development, review and revi-
sion of IEPs.).
34 C.F.R. 300 app. A.
Prior to 1997, the IDEA provided that the school district
was obligated to include the student’s current teacher as a
member of the IEP team. In 1997, Congress revised the IDEA
to require the inclusion of “at least one regular education
teacher of such child (if the child is, or may be, participating
in the regular education environment)” and “at least one spe-
cial education teacher, or where appropriate, at least one spe-
cial education provider of such child.” 20 U.S.C. § 1414(d)
(1)(B) (2003) (emphasis added).
[3] The plain meaning of the terms used in section
1414(d)(1)(B) compels the conclusion that the requirement
that least one regular education teacher be included on an IEP
team, if the student may be participating in a regular class-
room, is mandatory—not discretionary. Thus, the district
court’s finding that the IEP team was properly constituted
under the IDEA without at least one regular education teacher
608 M.L. v. FEDERAL WAY SCHOOL DISTRICT
was clearly erroneous. Accordingly, we must decide whether
the FWSD’s failure to comply with the requirement of the
IDEA that at least one regular education teacher evaluate the
unique needs of a disabled student fatally compromised the
integrity of the IEP and compels us to reverse the district
court’s judgment without considering whether the error was
harmless or whether the findings of the ALJ and the district
court that the IEP meets the substantive requirements of the
IDEA are clearly erroneous.
B.
[4] Citing Poolaw v. Bishop, 67 F.3d 830, 833 (9th Cir.
1995), FWSD contends that “[a] district court’s determination
that a student is incapable of deriving educational benefits
unless placed in a self contained program is reviewed for clear
error.” Appellees’ Brief at 21-22. This standard of review is
only applicable to a district court’s factual findings regarding
whether a school district has complied with the IDEA. “The
appropriateness of a special education placement under the
IDEA is reviewed de novo.” Poolaw, 67 F.3d at 833 (citing
Target Range, 960 at 1483). Because FWSD violated the pro-
cedural requirement of the IDEA that at least one regular edu-
cation teacher participate in the evaluation of an IEP, we are
precluded by the law of this circuit from considering the dis-
trict court’s factual findings regarding the merits of the sub-
stantive provisions of the IEP.
In Bd. of Educ. v. Rowley, 458 U.S. 176 (1982), the
Supreme Court instructed that a state must comply both pro-
cedurally and substantively with the IDEA. Id. at 206-07. The
Court held that “a court’s inquiry in suits brought under
§ 1415(e)(2) is twofold. First, has the State complied with the
procedures set forth in the Act? And second, is the individual-
ized educational program developed through the Act’s proce-
dures reasonably calculated to enable the child to receive
educational benefits?” Id. (footnotes omitted). The Court
reversed the judgment of the Court of Appeals which had
M.L. v. FEDERAL WAY SCHOOL DISTRICT 609
affirmed the district court’s decision that a deaf child was
denied a FAPE because school administrators denied her par-
ents’ request that she be provided with the services of a quali-
fied sign language interpreter in all of her classes. Id. at 209-
10. The Court held, “[T]he findings of neither court would
support a conclusion that Amy’s educational program failed
to comply with the substantive requirements of the Act.” Id.
at 209 (emphasis added). While the Court concluded that the
findings of the district court that the IEP complied with the
substantive provisions of the IDEA were not clearly errone-
ous, it held that a remand was compelled because the district
court failed to determine whether the state complied with the
procedural requirements of the IDEA. Id. at 209-10. Here, the
district court determined that the FWSD did not violate the
procedural requirements of the IDEA. Thus, even if we
assume arguendo that the findings of the ALJ and the district
court in this matter that the IEP complied with the substantive
requirements of the Act pursuant to Rowley, we must deter-
mine the effect on the district court’s judgment of the
FWSD’s failure to comply with its duty under IDEA to
appoint at least one regular education teacher to the IEP team.
To date, the Supreme Court has not expressly determined
whether a violation of the procedural requirements of the
IDEA is subject to harmless error review. That issue was not
properly before it in Rowley because the district court had
failed to rule on the respondents’ contention that petitioners
had failed to comply with the IDEA’s procedural require-
ments. 458 U.S. at 210 n.32.
In cases decided after Rowley was published, we have con-
cluded that we will not review the substantive provisions of
an IEP if a school district fails to include on the IEP team per-
sons identified by Congress as possessing the necessary quali-
fications to develop an IEP. In Target Range, we commented
that “[p]rocedural flaws do not automatically require a finding
of a denial of a FAPE. However, procedural inadequacies that
result in the loss of educational opportunity, or seriously
610 M.L. v. FEDERAL WAY SCHOOL DISTRICT
infringe on the parents’ opportunity to participate in the IEP
formulation process, clearly result in the denial of a FAPE.”
960 F.2d at 1484 (internal citations omitted).
In Target Range, we held that the school district violated
the procedures mandated by Congress in the IDEA by failing
to secure the participation of the disabled student’s regular
education teacher, or any representative of the private school
he attended after the school district refused to identify him as
disabled or develop an IEP. We held in Target Range that
“the procedural defects in the development of the IEP resulted
in denying [the student] a FAPE.” Id. at 1485. We reasoned
that because the school district failed to consider the recom-
mendations of persons who were the most knowledgeable
about the child, it failed its “duty to conduct a meaningful
meeting with the appropriate parties” and accordingly, it did
not “develop a complete and sufficiently individualized edu-
cational program according to the procedures specified by the
Act.” Id. at 1485. We also concluded that where the proce-
dural inadequacies of an IEP may have resulted in the loss of
an educational opportunity, or deprived a child’s parents of
the opportunity to participate meaningfully in forming an IEP,
an appellate court should not proceed to step two of the Row-
ley analysis, i.e., whether the IEP was reasonably calculated
to enable the child to receive educational benefits. Id.
In Amanda J. v. Clark County Sch. Dist., 267 F.3d 877 (9th
Cir. 2001), we applied the principles set forth in Rowley and
Target Range. We concluded that the school district’s proce-
dural violations in developing an IEP prevented the child
from receiving a FAPE. Id. at 890-91. In Amanda J., the
school district failed to allow the child’s parents “to examine
all relevant records with respect to the identification, evalua-
tion, and educational placement of the child” as required by
20 U.S.C. § 1415(b)(1)(A). Id. at 891 (quoting 20 U.S.C.
§ 1415(b)(1)(A)). We held that “[p]rocedural violations that
interfere with parental participation in the IEP formulation
process undermine the very essence of the IDEA.” Id. at 892.
 M.L. v. FEDERAL WAY SCHOOL DISTRICT 611
We characterized the procedural violation as “egregious.” Id.
at 891. We declined to address the question whether the IEP
was reasonably calculated to enable Amanda J. to receive
educational benefits. Id. at 895 (citing Target Range, 960 F.2d
at 1485).
More recently, in Shapiro ex rel. Shapiro v. Paradise Val-
ley Unified Sch. Dist., 317 F.3d 1072 (9th Cir. 2003), we held
that the failure to include a representative from the private
school that the child was currently attending on the IEP team
violated the procedural requirements of the IDEA. We rea-
soned that the failure to include “the teachers most knowl-
edgeable about [the child’s] special educational levels and
needs” was a violation of the IDEA. Id. at 1076-77. We con-
cluded in Shapiro that it was not necessary to address the sec-
ond prong of the Rowley FAPE analysis. Id. at 1079 (citing
Amanda J., 267 F.3d at 895, and Target Range, 960 F.2d at
1485).
The FWSD maintains that the failure to include at least one
regular education teacher on the team that developed the IEP
is not the type of procedural flaw that would compel us to
hold that Appellants were denied their right to a FAPE. They
cite our decision in Ford v. Long Beach Unified Sch. Dist.,
291 F.3d 1086 (9th Cir. 2002) for this proposition. Their reli-
ance on Ford is misplaced. It is readily distinguishable.
In Ford, the state’s hearing officer and the district court
upheld the school district’s assessment that a student was not
disabled. Id. at 1087. Before this court, the student’s parents
contended that “the assessment [of Amanda’s abilities and
disabilities] was inadequate because it did not include class-
room observation of Amanda by someone other than her regu-
lar education teacher as required by C.F.R. § 300.542.” Id. at
1089. Because the student was assessed as not being disabled,
no IEP was developed. We held in Ford that the failure to
comply with the C.F.R. § 300.542 “did not affect the validity
of the assessment.” Id. at 1089. No contention was asserted in
612 M.L. v. FEDERAL WAY SCHOOL DISTRICT
Ford that the school district violated the procedural require-
ments of the IDEA by its failure to include an individual iden-
tified by Congress as necessary to evaluate a student’s
abilities or disabilities. Thus, our opinion in Ford does not
resolve the question whether the failure of the FWSD to
include at least one regular education teacher on the IEP prej-
udiced Appellant’s rights to a FAPE.
[5] The record demonstrates that the FWSD failed to com-
ply with the “rigorous procedural requirements of IDEA.”
Union Sch. Dist. v. Smith, 15 F3d 1519, 1524 (9th Cir. 1994).
The failure to include at least one regular education teacher on
the IEP team deprived the team of “important expertise
regarding the general curriculum and the general educational
environment.” 34 C.F.R. 300 app. A. The IEP team did not
include individuals Congress concluded were most knowl-
edgeable about a disabled student’s special educational needs.
As a result, we have no way of determining whether the IEP
team would have developed a different program after consid-
ering the views of a regular education teacher. The failure to
include at least one regular education teacher on the IEP team
was a structural defect in the constitution of the IEP team.
In cases involving criminal prosecutions, the Supreme
Court has ruled that a structural defect in the trial mechanism
is not subject to harmless error analysis. Arizona v. Fulmi-
nante, 499 U.S. 279, 309 (1991). We have defined a structural
defect as “an error ‘that permeate[s] the entire conduct of the
trial from beginning to end or affect[s] the framework within
which the trial proceeds.’ ” United States v. Recio, 371 F.3d
1093, 1102 (9th Cir. 2004) (quoting Rice v. Wood, 77 F.3d
1138, 1141 (9th Cir. 1996) (internal citations and quotation
marks omitted)).
[6] The requirement that an appellate court must reverse
because of the effect of a structural error has been applied in
civil disputes where members of an evaluation board
expressly mandated by Congress were not included. In Doyle
M.L. v. FEDERAL WAY SCHOOL DISTRICT 613
v. United States, 599 F.2d 984 (Cl. Ct. 1979), amended on
other grounds by 609 F.2d 990 (Cl. Ct. 1979), the Court of
Claims reversed the decision of the Army Board for the Cor-
rection of Military Records because none of the selection
boards convened for the evaluation of reserve officers for pro-
motion to permanent rank included any reserve officers, as
required by 10 U.S.C. § 3362(b) (repealed and recodified at
100 U.S.C. § 14102(b)). The Court of Claims held that the
failure to include reserve officers on the selection boards for
evaluating reserve officers for promotion was not subject to
harmless error analysis. It reasoned as follows:
The error in this case, however, is not a violation of
the plaintiffs’ substantive rights but rather a violation
of the plaintiffs’ rights to fair procedure or process.
We are not unmindful of the fact that the due process
protections of the fifth amendment have been spar-
ingly extended to government employees, but that
problem is immaterial to this case. The error is the
violation of procedures instituted by statute and reg-
ulation, and, though federal employees may not be
entitled to any procedure not established by Con-
gress or agency, we have always held that they are
entitled to such procedure that has been so provided.
Since this case presents the issue of procedural errors
in the decision-making process of a selection board,
we find those cases dealing with the violation of
constitutional procedural rights to be more analo-
gous. The Supreme Court has recognized that even
in the case of constitutional error occurring in a
criminal trial, not every such error requires “the
automatic reversal of the conviction”; a conviction
will be upheld if the “federal constitutional error . . .
was harmless beyond a reasonable doubt.” Chapman
v. California, 386 U.S. 18, 22, 24, 87 S. Ct. 824, 827,
828, 17 L. Ed. 2d 705 (1967). See, e.g., Harrington v.
California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d
614 M.L. v. FEDERAL WAY SCHOOL DISTRICT
284 (1969) (violation of sixth amendment right of
confrontation); United States v. Parker, 549 F.2d
1217, 1221 (9th Cir. 1977), cert. denied, 430 U.S.
971, 97 S. Ct. 1659, 52 L. Ed. 2d 365 (1977) (prosecu-
tor’s comment on defendant’s failure to testify, in
violation of fifth amendment).
Some constitutional rights, however, are “so basic to
a fair trial that their infraction can never be treated
as harmless error . . . .” Chapman v. California,
supra, 386 U.S. at 23, 87 S. Ct. at 827 (coerced con-
fession, right to counsel, impartial judge). These
include cases in which compositional defects are
found to exist in respect to juries. See, e.g., Whitus
v. Georgia, 385 U.S. 545, 87 S. Ct. 643, 17 L. Ed. 2d
599 (1967). Two justifications for the rule of auto-
matic reversal are generally advanced. First, some
errors are so inimical to judicial or fair process that
their violation cannot be tolerated under any circum-
stances. Application of the test of harmless error
would result in the dilution of the afforded protec-
tion. Second, a court, in the case of some errors, such
as the improper composition of a jury or the bias of
a judge, “has no way of evaluating the effect of the
error on the judgment in the dark of what might have
been but never was, . . . .” R. J. Traynor, The Riddle
of Harmless Error 66 (1970).
Though the proceeding involved herein is evalua-
tional, not accusatory, and the error statutory, not
constitutional, we do not for these reasons believe
that these plaintiffs are entitled to any less protec-
tion. Decisions of selection boards have important
consequences for those considered. They are either
promoted to higher rank and pay or are terminated
and lose their employment and pay. The statute
explicitly commands that selection boards shall be
composed of an appropriate number of Reserve offi-
M.L. v. FEDERAL WAY SCHOOL DISTRICT 615
cers so that Reserve officers will not be prejudiced
and so that Congress’ purpose that the nation is pro-
tected by a military composed of those officers best
qualified regardless of their status as Regular or
Reserve officers, is carried out. We believe that Con-
gress’ purpose would be thwarted unless a Secretary
is aware that this is a statutory requirement that can-
not be waived.
Moreover, we believe that the second justification
for the automatic reversal rule, that it is not possible
for a reviewing body to determine what effect the
error had on the judgment of the original proceeding,
forces us to conclude that the doctrine of harmless
error cannot be applied to this type of procedural
error.
Id. at 995-96.
In Dilley v. Alexander, 603 F.2d 914 (D.C. Cir. 1979), the
United States Court of Appeals for the District of Columbia
held that the failure of the Army to include reserve officers on
a promotion board violated 10 U.S.C. § 266 (1976). Id. at
920. The court rejected the Army’s contention that the appel-
lants were not prejudiced by the defect in the composition of
the promotion board because a subsequently properly consti-
tuted Relook Board found that the defect in the composition
of the 1975 promotion board did not result in any prejudice
to the appellants. The court stated: “[T]he prejudice which the
statute guaranteed against, insofar as reserve officers were
concerned, was consideration by a promotion board devoid of
reserve officers.” Id. at 921 (emphasis in original). In addi-
tion, the court reasoned that the Relook Board’s findings,
“while laudable perhaps, are either irrelevant or incorrect as
a matter of law. Although a desire to eliminate prejudice obvi-
ously occasioned the enactment of the statute, section 266
itself does not outlaw anti-Reserve bias. It prescribes a proce-
dural entitlement that no subsequent factual findings can
616 M.L. v. FEDERAL WAY SCHOOL DISTRICT
diminish.” Id. at 923-24 (emphasis added). The court further
commented in Dilley that, “Congress made a decision over a
quarter of a century ago that a promotion selection board con-
sidering Reserve candidates was inherently defective if it
lacked Reserve representation; the Army was not at liberty to
review and reverse that congressional decision on its own.”
Id. at 924.
[7] I am persuaded by the analysis in Doyle and Dilley that
the failure to include the individuals identified by Congress as
necessary participants in evaluating whether entitlement to
benefits has been demonstrated is applicable to an administra-
tive proceeding under the IDEA. Accordingly, I conclude that
the failure to include at least one regular education teacher,
standing alone, is a structural defect that prejudices the right
of a disabled student to receive a FAPE. Under these circum-
stances, a review of the findings of the ALJ and the district
court regarding the merits of the substantive recommenda-
tions of an illegally constituted IEP team for clear error would
produce a futile advisory opinion which is beyond our judicial
power or competence.
C.
The FWSD argues that the participation of a regular educa-
tion teacher on the IEP team was not required because it was
not likely that M.L. would be placed in an integrated class-
room since the Evaluation Report recommended against it.
This argument completely ignores the fact that the record
shows that the Tukwila IEP directed that M.L. be placed in a
regular kindergarten classroom. M.L. had attended a regular
preschool classroom for three years. After his family moved
to the FWSD, M.L. was placed in Ms. Ramsey’s regular edu-
cation classroom. This contention is also inconsistent with the
FWSD’s representation that “the District did not predetermine
the Student’s placement.” Appellees’ Brief at 35. In light of
these facts, the record supports an inference that it was possi-
ble that M.L. would be placed in a regular education class-
M.L. v. FEDERAL WAY SCHOOL DISTRICT 617
room. So long as this was a possibility, participation of a
regular education teacher in the IEP team was required by the
IDEA.
The FWSD was aware that two teachers had observed M.L.
in an integrated classroom. Ms. Ramsey had observed him for
one week before his mother withdrew him because he was
teased by non-disabled children. Ms. Wicks had observed
M.L. for three years in an integrated preschool classroom. Of
the two regular education teachers, Ms. Wicks was the most
knowledgeable about M.L.’s educational needs because she
had been his teacher for three years. She recommended that
M.L. be placed in an integrated classroom. The FWSD did not
include either Ms. Ramsey or Ms. Wicks or any other regular
education teacher on its IEP team.
The FWSD appears to suggest that the Appellants waived
their right to object to the failure to include a regular educa-
tion teacher on the IEP team because they failed to attend the
IEP meetings. The FWSD argues that “[t]he District
attempted to facilitate the Parents’ participation in the IEP
meeting but the Parents refused to attend. Their refusal to par-
ticipate was at their own risk.” Appellees’ Brief at 36-37. We
rejected a similar argument in Target Range:
The Act imposes upon the school district the duty to
conduct a meaningful meeting with the appropriate
parties. Target Range failed to do so. Target Range
failed to fulfill the goal of parental participation in
the IEP process and failed to develop a complete and
sufficiently individualized educational program
according to the procedures specified by the Act.
960 F.2d at 1485 (emphasis added).
The FWSD’s assumption-of-the-risk defense betrays its
misunderstanding of the importance of the procedural require-
ments of the IDEA. The Supreme Court stated in Rowley, that
618 M.L. v. FEDERAL WAY SCHOOL DISTRICT
“[w]e think that the congressional emphasis upon full partici-
pation of concerned parties throughout the development of the
IEP . . . demonstrates the legislative conviction that adequate
compliance with the procedures prescribed would in most
cases assure much if not all of what Congress wished in the
way of the substantive content in an IEP.” Id. at 206.
Clearly, under the circumstances of this case, Ms. Wicks
was a concerned party regarding the placement of M.L. in an
integrated classroom because he was her student for three
years. Because she was not included in the IEP team, we have
no way of ascertaining whether her observations would have
persuaded the other team members to formulate a different
program for M.L. that would be appropriately tailored to his
abilities and special needs. Ms. Ramsey’s more limited obser-
vation of M.L. in her integrated classroom might also have
assisted the IEP team in ensuring that M.L. received a FAPE
based on his physical and mental condition. Indeed, any regu-
lar education teacher would have contributed his or her
knowledge of the ability of a disabled student to benefit from
being placed in a regular classroom. The Appellants are not
responsible for the FWSD’s violation of the procedural
requirements of the IDEA.
The FWSD argues that it was not compelled to ensure the
participation of a regular education teacher “because the
evaluators had recommended a self-contained placement.”
Appellees’ Brief at 28. This argument ignores the fact that
although the FWSD named a regular education teacher to be
a member of the IEP team, she did not attend the November
13, 2000 meeting. Having determined a regular education
teacher should be a member of the IEP team, the FWSD
should have cancelled that meeting instead of proceeding with
an illegally constituted IEP team.
[8] Under the law of this circuit, the FWSD violated the
procedural requirements of the IDEA, by failing to ensure the
participation of a regular education teacher in the evaluation
M.L. v. FEDERAL WAY SCHOOL DISTRICT 619
of M.L.’s educational needs. This structural defect compels
reversal of the district court’s judgment without considering
the merits of the IEP developed without the evaluation of at
least one regular education teacher.9
9
Although I would apply the structural error analysis outlined above, I
recognize that a majority of the panel has adopted a harmless error test
instead. How harmless error review is to be conducted is therefore
squarely presented. Therefore, I believe I should address the issue so that
future panels confronted with it will have an expression of each of our
views on this question.
I cannot agree with Judge Clifton’s analysis because he relies on the
ALJ’s and the district court’s findings that the placement made by the pro-
cedurally defective IEP team was, nevertheless, harmless because it was
the best placement for M.L. See infra at 639-40 (Clifton, J. dissenting).
This approach rewards procedural non-compliance and is at odds with the
Supreme Court’s holding that the IDEA seeks to achieve its substantive
ends largely through procedural means:
[T]he importance Congress attached to [the Act’s] procedural
safeguards cannot be gainsaid. . . . We think that the congressio-
nal emphasis upon full participation of concerned parties
throughout the development of the IEP . . . demonstrates the leg-
islative conviction that adequate compliance with the procedures
prescribed would in most cases assure much if not all of what
Congress wished in the way of substantive content in an IEP.
Rowley, 458 U.S. at 205-06 (emphasis added).
Judge Clifton recognizes that Rowley mandates a two-step analysis. See
infra at 640 (Clifton, J., dissenting). Nevertheless, he appears to have
jumped to the substantive second step to resolve the procedural first step,
effectively circumventing the two-step process.
Even under the harmless error standard of review adopted by the major-
ity, it is my view that loss of an educational opportunity cannot be deter-
mined by considering the merits of the placement identified in the IEP.
Instead, it must be determined by whether the failure to include at least
one regular education teacher, as expressly mandated by Congress, had a
material and inherently harmful impact on the ability of the defective IEP
team to develop a program that was reasonably calculated to enable M.L.
to receive educational benefits. Thus, I believe the school district’s proce-
dural error was not harmless.
620 M.L. v. FEDERAL WAY SCHOOL DISTRICT
III
The Appellants further assert that M.L. was denied a FAPE
because the FWSD failed to take action to prevent other stu-
dents from teasing M.L. The Appellants argue that there is
uncontradicted evidence in the record that the FWSD was
deliberately indifferent to C.D.’s reports that her child was
being teased. They maintain that the teasing resulted in a
denial of a FAPE. Neither the statute nor any court has
directly addressed the question whether unremedied teasing
can constitute a denial of a FAPE. Cf. Charlie F. ex rel. Neil
F. v. Bd. of Educ., 98 F.3d 989, 993 (7th Cir. 1996) (holding
that, “at least in principle relief is available under the IDEA”
when a teacher invited her pupils to express their complaints
about a disabled student which led to humiliation, fistfights,
mistrust, loss of confidence and self-esteem, and disruption of
his educational progress).
Under the IDEA, a disabled child is guaranteed a FAPE, 20
U.S.C. § 1412(1), which “ ‘provide[s] educational benefit to
the handicapped child.’ ” Gregory K., 811 F.2d at 1314 (quot-
ing Rowley, 458 U.S. at 201) (emphasis added). If a teacher
is deliberately indifferent to teasing of a disabled child and the
abuse is so severe that the child can derive no benefit from the
services that he or she is offered by the school district, the
child has been denied a FAPE. Cf. Davis v. Monroe County
Bd. of Educ., 526 U.S. 629, 633 (1999) (holding that to vio-
late Title IX “harassment . . . [must be] so severe, pervasive,
and objectively offensive that it effectively bars the victim’s
access to an educational opportunity or benefit”).
The record shows that by removing M.L. from Mark Twain
Elementary School after only five days, Appellants failed to
give the FWSD a reasonable opportunity to find a way to pre-
vent the other students from teasing M.L. Appellants have
also failed to demonstrate that teasing resulted in the loss of
an educational benefit. Appellants have offered no evidence
that the teasing affected M.L. or interfered with his education.
M.L. v. FEDERAL WAY SCHOOL DISTRICT 621
C.D. testified that during one of the teasing incidents, M.L.
was “happy as a little lark.” C.D. also stated that during
another episode “because he had his headphones on most of
the time he was being teased . . . [she] didn’t know if he even
heard it.”
[9] Appellants contend, without evidentiary support, that
unpunished teasing “can easily escalate from mere verbal
abuse, to physical or sexual abuse” and is “potentially danger-
ous.” Appellants’ Brief at 52, 54. Appellants also argue that
teasing poses a particular danger to M.L. since, because he
has little or no verbal skills, he would be unable to report any
physical abuse. However, Appellants have not directed this
court’s attention to any violence, or threat of physical contact
between another student and M.L. Appellants have not
adduced sufficient evidence to show that M.L. was denied a
FAPE by the FWSD’s alleged failure to stop M.L.’s class-
mates from teasing him during his five days in a regular edu-
cation classroom.
CONCLUSION
The FWSD’s failure to ensure the participation of a regular
education teacher on the IEP team when there was a possibil-
ity that M.L. would be placed in an integrated classroom was
a significant violation of the structural requirements of the
IDEA’s procedures requiring vacation of the order granting
summary judgment in favor of the FWSD. Upon remand, the
district court is instructed to enter an order directing the
FWSD to select an IEP team that fully complies with the pro-
cedural requirements of the IDEA.
Upon remand, the district court is requested to determine,
in its discretion, whether to award reasonable attorneys fees
as part of the costs to the Appellants as the prevailing parties
pursuant to 20 U.S.C. § 1415(i)(3)(B). The district court
should also determine whether the Appellants are entitled to
equitable reimbursement for the educational costs they have
622 M.L. v. FEDERAL WAY SCHOOL DISTRICT
incurred due to the FWSD’s procedural violation of the
IDEA.
VACATED and REMANDED with instructions.
M.L. v. FEDERAL WAY SCHOOL DISTRICT 623
Volume 2 of 2
624 M.L. v. FEDERAL WAY SCHOOL DISTRICT
GOULD, Circuit Judge, concurring in part and concurring in
the judgment:
I concur in the judgment and in Sections I, II-A, II-C, and
III of Judge Alarcon’s opinion. I agree that 20 U.S.C
§ 1414(d)(1)(B)(ii) requires that at least one regular education
teacher be included on an Individualized Education Program
(“IEP”) team, and that the omission of a regular education
teacher from M.L.’s IEP team was procedural error. However,
I do not agree with the per se “structural defect” analysis
adopted by Judge Alarcon in Section II-B. I write separately
to make clear that our court’s procedural analysis under IDEA
does not start and end with automatic reversal based on a the-
ory of structural error. Instead, we must assess the school dis-
trict’s error for harmlessness—in accord with our precedent in
Target Range, Amanda J., and Shapiro—by considering
whether the procedural error resulted in a loss of educational
opportunity or significantly restricted parental participation in
the IEP formation. IDEA procedural error may be held harm-
less in appropriate cases, and this may include cases involving
a mistake in how the IEP team was constituted. Although
Judge Clifton in dissent and I in concurrence agree on the
rejection of structural error and on the standard for assessing
harmless error, we reach different conclusions in the applica-
tion of the governing standard.1 We both agree that the harm-
1
Judge Clifton’s dissent states:
Finally, I agree with Judge Gould, as expressed in Section I of his
opinion, that a structural error analysis is not supported by our
caselaw and has no place in the IDEA context. As Judge Gould
correctly observes, a procedural violation constitutes a denial of
a free and appropriate public education only when it results in a
lost educational opportunity for the child or significantly restricts
parental participation in formation of the IEP.
Dissent at 635.
Judge Clifton in his dissent concludes that the error in composition of
the IEP team was harmless under the same standard I apply. Our differ-
ences turn in part on our disagreement on whether the assessment of loss
of educational opportunity is a question of fact to be reviewed for clear
error, or a mixed question of fact and law, to be reviewed de novo, as can
be seen from a comparative review of our opinions, which apply the same
standard but reach contrary results.
M.L. v. FEDERAL WAY SCHOOL DISTRICT 625
less error assessment turns here on whether there was a “loss
of educational opportunity” for M.L. Applying this correct
test for harmless error, I further conclude that the error in
composition of the IEP team, under the circumstances of this
case, caused a violation of the IDEA and requires reversal of
the district court’s order granting summary judgment.
In Section I, I explain what I believe to be the controlling
test for harmless error under our case law and why I believe
a structural defect analysis is inapplicable in an IDEA context.
In Section II, I apply the harmless error test to the facts in the
record, and conclude that the procedural error in this case was
not harmless. Hence, I concur in the judgment reached by
Judge Alarcon, but not the structural error analysis that he
advances.
I
A
In Board of Education v. Rowley, 458 U.S. 176, 206-207
(1982), the Supreme Court established a framework for IDEA
review: “First, has the State complied with the procedures set
forth in the Act? And second, is the individualized educa-
tional program developed through the Act’s procedures rea-
sonably calculated to enable the child to receive educational
benefits?” In applying this standard, our cases (and those of
our sister circuits) have not adopted a structural error
approach. Instead, each case treats the procedural prong of
Rowley as having two subparts: First, was there a procedural
violation of the IDEA, and second, if there was error, did it
affect the substantive rights of the plaintiff. See 28 U.S.C.
§ 2111 (“On the hearing of any appeal or writ of certiorari in
any case, the court shall give judgment after an examination
of the record without regard to errors or defects which do not
affect the substantial rights of the parties.”).
626 M.L. v. FEDERAL WAY SCHOOL DISTRICT
The test for determining whether IDEA procedural error
affects the substantial rights of the parties has been estab-
lished by our prior precedent. In W.G. v. Board of Trustees of
Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 (9th Cir.
1992) (“Target Range”), we stated: “Procedural flaws do not
automatically require a finding of a denial of a FAPE. How-
ever, procedural inadequacies that result in the loss of educa-
tional opportunity, or seriously infringe the parents’
opportunity to participate in the IEP formulation process,
clearly result in the denial of a FAPE.” Id. (internal citations
omitted).2 Our more recent cases follow the Target Range
procedural error analysis. See Shapiro v. Paradise Valley Uni-
fied Sch. Dist., 317 F.3d 1072, 1079-1080 (9th Cir. 2003)
(quoting and applying the Target Range standard in holding
that the omission of a child’s parents and a teacher from her
prior school were procedural violations in the creation and
composition of her IEP team which amounted to the denial of
a FAPE because they “resulted in the loss of educational
opportunity for [the child]”) superseded on other grounds by
20 U.S.C. § 1414(d)(1)(B); Amanda J. v. Clark County Sch.
Dist., 267 F.3d 877, 891-892 (9th Cir. 2001) (applying the
Target Range analysis to an “egregious” IDEA procedural
error instead of granting automatic reversal). In sum, our pre-
cedents in Target Range, Amanda J., and Shapiro establish
that not all procedural violations by a school district in imple-
2
In Target Range, we addressed whether omissions in the formulation
of an IEP constituted the denial of a free appropriate public education
(“FAPE”). The district court had held in favor of the plaintiff family, find-
ing that the Target Range school district had failed to include important
parties—the child’s parents, regular education teacher, or a representative
of the private school the child had also attended—in the IEP development.
960 F.2d at 1483-1484. We affirmed, holding that “Target Range clearly
did not comply with the procedures required by the IDEA.” Id. Our analy-
sis elaborated that procedural errors do not amount to a per se denial of
a FAPE, but, rather, that we will find that a FAPE has been denied where
procedural inadequacies result in the “loss of educational opportunity,” or
when such errors “seriously infringe” parental ability to participate in the
IEP process. Id. at 1484.
 M.L. v. FEDERAL WAY SCHOOL DISTRICT 627
menting the IDEA will necessarily result in the denial of a
FAPE. Procedural error—including in M.L.’s case the omis-
sion of members of an IEP team—constitutes the denial of a
FAPE only when it results in lost educational opportunity for
the child, or when it significantly restricts parental participa-
tion in the IEP formation. See Target Range, 960 F.2d at
1484; Shapiro, 317 F.3d at 1079; Amanda J., 267 F.3d at 892;
Ms. S. ex rel. G. v. Vashon Island Sch. Dist., 337 F.3d 1115,
1129 (9th Cir. 2003) superseded on other grounds by 20
U.S.C. § 1414(d)(1)(B).
B
Judge Alarcon characterizes the absence of a regular educa-
tion teacher from M.L.’s IEP team as a “structural error” or
a “structural defect” that is not subject to harmless error anal-
ysis. Judge Alarcon’s Opinion at 612. In doing so, he extrapo-
lates from the criminal context, where the Supreme Court has
immunized certain errors that affect the constitutional rights
of defendants from harmless error review. See generally Ari-
zona v. Fulminante, 499 U.S. 279, 309-310, (1991); Chapman
v. California, 386 U.S. 18, 22-24 (1967).3
While one might in other contexts applaud a creative solu-
tion to a difficult case, I find this structural error analysis
strikingly inapplicable in our civil case context, where we are
asked to assess whether a school district has infringed a
child’s rights to education consistent with the IDEA. Even in
3
In support of his extension of this concept to our civil case, Judge Alar-
con cites two 1979 cases external to our circuit addressing promotional
evaluation boards in the United States Army, Doyle v. United States, 599
F.2d 984 (Cl. Ct. 1979), and Dilley v. Alexander, 603 F.2d 914 (D.C. Cir.
1979). Doyle and Dilley analogized to the structural defect cases discussed
in Chapman, holding that the omission of statutorily-mandated reserve
officers from military boards evaluating reservists for promotion was a
structural error which was per se prejudicial and precluded any subsequent
harmless error review. Doyle, 599 F.2d at 995; Dilley, 603 F.2d at 921-
924.
628 M.L. v. FEDERAL WAY SCHOOL DISTRICT
the realm of constitutional error in criminal prosecutions,
where life and liberty are at stake, the Court has made clear
that the situations where we will find structural error requiring
automatic reversal are a “very limited class of cases.” Johnson
v. United States, 520 U.S. 461, 468 (1997).4 Structural errors
are the “exception and not the rule,” Rose v. Clark, 478 U.S.
570, 578 (1986), and “most constitutional errors can be harm-
less.” Fulminante, 499 U.S. at 306.
Judge Alarcon cites no precedent applying structural error
in civil cases in our circuit, and I have found none, nor has he
cited any IDEA-specific cases in our circuit applying a struc-
tural error test to procedural error.5 Moreover, Judge Alarcon
does not cite any examples of IDEA structural error analysis
from other circuits. In fact, our sister circuits have consis-
tently rejected per se IDEA structural error arguments, and
instead have adopted case-by-case, harmless error inquiries
similar to our standard, which I have reviewed above.6 Nor
4
In emphasizing the narrowness of this limited universe of structural
defects warranting per se relief, the Supreme Court, in Neder v. United
States, 527 U.S. 1, 8 (1999), cited key cases identifying such defects:
Johnson v. United States, 520 U.S. 461, 468, 117 S. Ct. 1544, 137
L. Ed. 2d 718 (1997) (citing Gideon v. Wainwright, 372 U.S. 335,
83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) (complete denial of counsel);
Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927)
(biased trial judge); Vasquez v. Hillery, 474 U.S. 254, 106 S. Ct.
617, 88 L. Ed. 2d 598 (1986) (racial discrimination in selection of
grand jury); McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944,
79 L. Ed. 2d 122 (1984) (denial of self-representation at trial);
Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31
(1984) (denial of public trial); Sullivan v. Louisiana, 508 U.S.
275, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993) (defective reason-
able doubt instruction).
5
The two Ninth Circuit cases cited by Judge Alarcon to define structural
error both concern the constitutional rights of criminal defendants. United
States v. Recio, 371 F.3d 1093, 1101 (9th Cir. 2004); Rice v. Wood, 77
F.3d 1138, 1141 (9th Cir. 1996). They are inapposite in this IDEA context.
6
Adam J. v. Keller Indep. Sch. Dist., 328 F.3d 804, 812 (5th Cir. 2003)
(citing Target Range, 960 F.2d at 1484, and holding that “even if the
M.L. v. FEDERAL WAY SCHOOL DISTRICT 629
does the structural error position in IDEA litigation find any
support in the text or legislative history of the IDEA. In the
absence of guidance from the Court or Congress, we should
conclude that IDEA cases are subject to the general principle
determination of [the child’s] IEP was procedurally deficient in some
respects, he has not established that any procedural deficiency resulted in
a loss of educational opportunity or infringed his parents’ opportunity to
participate in the IEP process”); DiBuo v. Bd. of Educ., 309 F.3d 184, 191
(4th Cir. 2002) (rejecting the argument that a procedural IDEA violation
should constitute a per se denial of a FAPE); MM v. Sch. Dist. of Green-
ville County, 303 F.3d 523, 533 (4th Cir. 2002) (holding that “[w]hen such
a procedural defect exists, we are obliged to assess whether it resulted in
the loss of educational opportunity for the disabled child, or whether, on
the other hand, it was a mere technical contravention of IDEA”); T.S. v.
Indep Sch. Dist. No. 54, 265 F.3d 1090, 1095 (10th Cir. 2001)
(“Procedural defects alone do not constitute a violation of the right to a
FAPE unless they result in the loss of educational opportunity.”); Knable
v. Bexley City Sch. Dist., 238 F.3d 755, 765 (6th Cir. 2001) (“[A] proce-
dural violation of the IDEA is not a per se denial of a FAPE; rather, a
school district’s failure to comply with the procedural requirements of the
Act will constitute a denial of a FAPE only if such violation causes sub-
stantive harm to the child or his parents. . . . [P]rocedural violations that
deprive an eligible student of an [IEP] or result in the loss of educational
opportunity also will constitute a denial of a FAPE under the IDEA.”);
Weiss v. Sch. Bd. of Hillsborough County, 141 F.3d 990, 996 (11th Cir.
1998) (“For the [plaintiff family] to prove that [their child] was denied a
FAPE, they must show harm to [the child] as a result of the alleged proce-
dural violations. Violation of any of the procedures of the IDEA is not a
per se violation of the Act.”); Heather S. v. Wisconsin, 125 F.3d 1045,
1059 (7th Cir. 1997) (quoting the Target Range standard); Indep. Sch.
Dist. No. 283 v. S.D., 88 F.3d 556, 562 (8th Cir. 1996) (“An IEP should
be set aside only if procedural inadequacies compromised the pupil’s right
to an appropriate education, seriously hampered the parents’ opportunity
to participate in the formulation process, or caused a deprivation of educa-
tional benefits.”) (internal quotation marks omitted); Murphy v. Timber-
lane Reg. Sch. Dist., 22 F.3d 1186, 1196 (1st Cir. 1994) (“[N]ot every
procedural irregularity gives rise to liability under the IDEA. Neverthe-
less, procedural inadequacies [that have] compromised the pupil’s right to
an appropriate education . . . or caused a deprivation of educational bene-
fits are the stuff of successful IDEA actions.”) (internal quotation marks
omitted); Hampton Sch. Dist. v. Dobrowolski, 976 F.2d 48, 52-53 (1st Cir.
1992).
630 M.L. v. FEDERAL WAY SCHOOL DISTRICT
of harmless error that applies generally in civil and criminal
law contexts. See 28 U.S.C. § 2111; Fed R. Crim. P. 52(a);
Fed. R. Civ. P. 61.
Judge Alarcon’s structural error analysis disclaims a gen-
eral applicability and purports to be limited, advocating a per
se rule of reversal only for the violation of one procedural
requirement of the IDEA: 20 U.S.C. § 1414(d)(1)(B)(ii), the
requirement that an IEP team include a regular classroom
teacher. However, Judge Alarcon sets forth no persuasive
qualitative distinction between § 1414(d)(1)(B)(ii) and the
other procedural requirements of the IDEA, which too are
important.7 Consequently, Judge Alarcon’s opinion posits no
necessary or logical stopping point prohibiting future courts
from applying a structural error approach to virtually any
IDEA procedural error. In my view, the best means by which
to differentiate between such errors is to evaluate each one
individually—as colored by each case’s particular facts—and
to apply a uniform standard that assesses lost educational
opportunity or lost parental participation, not by adopting a
7
Judge Alarcon emphasizes that the 1997 IDEA amendments revised
the language of this provision, changing the IEP team requirement from
the current teacher, when general education is a real possibility, to both a
regular classroom teacher and a special education teacher. Op. at 607;
compare 20 U.S.C. § 1414(d)(1)(B) (2003), with 20 U.S.C. § 1401(a)(20)
(1996). But the 1997 IDEA amendments were numerous and substantive,
affecting the entire statutory scheme, and reworking several procedural
requirements, including other aspects of the IEP process. See generally
Dixie Snow Huefner, The Individuals With Disabilities Education Act
Amendments of 1997, 122 Ed. L. Rep. 1103 (1998). Other “[m]ajor new
requirements were added to the IEP section.” Id. at 1112-15. We
accounted for Congress’s purpose and focus, when it amended the provi-
sion, by our holding that it had been violated, and by rejecting the school
district’s array of defensive arguments. Yet, there is nothing in the statute
or its regulations from which to conclude that those changes necessitate
that § 1414(d)(1)(B)(ii) have its own structural defect procedural error
analysis, separate and apart from the analysis applied to the other equally
important IDEA procedural requirements, and at odds with the general
course of civil and even criminal law.
M.L. v. FEDERAL WAY SCHOOL DISTRICT 631
per se rule that insulates a subset of errors from future review.
It should not be forgotten that, in interpreting IDEA, we, like
the school district, parents, and the advocates participating in
administrative hearing and in the courts, are trying to deter-
mine what is best for a disabled child.
II
Accordingly, my analysis takes me back to where I com-
menced, applying the Target Range standard to determine
whether the procedural error in IEP team composition
amounted to denial of a FAPE by either excluding appropriate
parental participation or causing a lost educational opportu-
nity for the child. This case poses no genuine issue of whether
a parent of M.L. was excluded from the IEP process,8 and so
the controlling issue becomes whether the failure to include
a regular education teacher on the IEP team resulted in a “loss
of educational opportunity” within the meaning of the test
established in Target Range. I am persuaded that, under the
total circumstances, M.L. lost an educational opportunity
because the FWSD violated the procedural requirements of
the IDEA by failing to include a participating regular educa-
tion teacher on the IEP team.9
8
Appellants do not contend that the FWSD’s procedural error signifi-
cantly restricted their participation in the IEP process.
9
We review de novo the district court’s conclusions of law. Gregory K.
v. Longview Sch. Dist., 811 F.2d 1307, 1310 (9th Cir. 1987). Judge Clifton
concludes that the question of harmless error is one of fact and that we
review the district court’s findings for clear error. Dissent at 642-43. His
analysis must concede, however, that the district court did not “fram[e]
[its] discussion in terms of ‘loss of educational opportunity’ ” and that “the
meaning of the phrase ‘lost educational opportunity’ ” is a legal question.
Dissent at 637, 642 n.4. For these reasons, the question of whether M.L.
has “los[t] an educational opportunity” under the IDEA is a mixed ques-
tion of law and fact which we review de novo. Gregory K., 811 F.2d at
1310; Target Range, 960 F.2d at 1483 (holding that the issue of whether
a proposed IEP constitutes a FAPE is a mixed question of law and fact that
we review de novo).
632 M.L. v. FEDERAL WAY SCHOOL DISTRICT
The statutory requirement that an IEP team for a disabled
child who is or may be in regular education must include a
regular education teacher is not merely technical. A regular
education teacher may have insights or perspectives that aid
the process of IEP formation. We need not say that error in
composition of an IEP team is always prejudicial and invari-
ably results in the denial of a FAPE. Rather, we should assess
the circumstances of each case, and here the record demon-
strates that the failure to include Ms. Ramsey or Ms. Wicks
or any other regular education teacher on the participating IEP
team deprived M.L. of an educational opportunity.
This conclusion is unmistakable for several reasons. First,
there is the IDEA’s statutory preference for mainstreaming.
The IDEA favors mainstreaming the education of a disabled
child to “the maximum extent appropriate” given the nature
of the child’s disability. 20 U.S.C. § 1412(a)(5)(A).10 When
mainstreaming is pursued with a disabled child, and the
child’s education proceeds in the “Least Restrictive Environ-
ment,” as set forth in 20 U.S.C. § 1412(a)(5)(A), the crucial
purposes and requirements of IDEA are realized: The disabled
child receives the benefit of observing and working with those
who are not disabled, which can provide the disabled child
with both educational and non-academic benefits. Children
who are not disabled are given the opportunity to become bet-
ter acquainted with their disabled peers, which may help
avoid stereotyping, lessen prejudice, and prepare all students
to work together in society. Most importantly, mainstreaming
is the mechanism for fulfilling the statutory goal that the dis-
abled child be educated in the least restrictive setting, which
experience tells us is best for the child’s development. See
10
To better accomplish this goal and accommodate those disabled chil-
dren who might require specialized tools and supplements, Congress man-
dated that a child could only be removed from the regular class
environment when the “use of supplementary aids and services could not
be achieved satisfactorily” in the regular educational environment. 20
U.S.C. § 1412(a)(5)(A).
M.L. v. FEDERAL WAY SCHOOL DISTRICT 633
e.g., Alan Gartner & Dorothy K. Lipsky, Beyond Special Edu-
cation: Toward a Quality System for All Students, 57 Harv.
Educ. Rev. 367, 375 (1987) (concluding that there is a “sub-
stantial and growing” body of evidence that supports the aca-
demic and emotional developmental value of mainstreaming).
The parents of disabled children do not have to prove a regu-
lar education environment is best for their children; rather, it
is the school district’s burden to explain in the IEP the extent
to which a child cannot participate in regular education activi-
ties. 20 U.S.C. § 1414(d)(1)(A)(iv).
Second, Ms. Wicks, M.L.’s prior regular education teacher,
had written to the FWSD, informing the school district that
M.L. had made “good progress” in her class, which was com-
prised of twelve non-disabled students and four or five with
“special needs,” and recommending that M.L. remain in regu-
lar education during his kindergarten year. Third, the FWSD
had appointed a regular education teacher to the IEP team, but
inexplicably went forward with the IEP planning meeting
without that teacher’s presence and participation. Fourth,
M.L.’s past IEP and placement demonstrated that it was at
least possible to conclude that M.L. could be placed in a regu-
lar education classroom.
I certainly recognize that M.L.’s education in a regular
classroom poses serious challenges for him, for classmates,
for instructors, and for administration. That is clear from the
record before us. But under the totality of circumstances, we
cannot readily conclude that the statutory violation in not hav-
ing a regular education teacher participate on the IEP team
was harmless. To the contrary, there is a strong likelihood that
mainstreaming opportunities for M.L. would have been better
considered had a regular education teacher taken part in the
program’s preparation, and that more mainstreaming might
have been permitted for M.L. under the IEP. Hence, I do not
believe that we can properly hold that the error in IEP team
composition here was harmless.
634 M.L. v. FEDERAL WAY SCHOOL DISTRICT
Because I conclude on this record that we must hold that
the FWSD’s IEP process caused a “loss of educational oppor-
tunity,” and the district court’s conclusion was error,11 I need
not reach the second step in the Rowley analysis, i.e., whether
the IEP was “reasonably calculated to enable the child to
receive educational benefits.” Rowley, 458 U.S. at 207; see
also 28 U.S.C. § 2111 (providing that “[o]n the hearing of any
appeal . . . in any case, the court shall give judgment after an
examination of the record without regard to errors or defects
which do not affect the substantial rights of the parties”).12
11
I reach this conclusion initially on my premise that the issue is a
mixed question of fact and law, not predominantly factual in light of the
IDEA’s statutory preference for mainstreaming; but even if I were to view
this issue under the “clear error” standard, I would still conclude that the
district court’s grant of summary judgment on the theory that there was no
lost educational opportunity was reversible error.
12
The dissent concludes that we must affirm because the district court
found “that the program developed by the IEP team was the best place-
ment for M.L., because it maximized the academic and nonacademic ben-
efits available to him.” Dissent at page 637. But, the district court made
its findings regarding whether the IEP was reasonably calculated to enable
the child to receive educational benefits without the benefit of the views
and expertise of a regular classroom teacher having been expressed at the
critical IEP team meeting to discuss M.L. The IDEA mandates that a regu-
lar classroom teacher be a member of the IEP team. Although I do not
think a per se reversal follows from a violation under our precedent, there
is no doubt that the inclusion of a regular education teacher on the IEP
team promotes the purposes of the IDEA. We ought not to speculate here
that noncompliance with the procedural standards mandated in the IDEA
did not matter. Because the failure of the school district to include a regu-
lar classroom teacher on the IEP team, conjoined with the other circum-
stances reviewed above that made regular education for M.L. a distinct
possibility, we cannot say the error was harmless. For these reasons, and
because of my disagreement on the standard of review, see supra notes 9
and 11, I cannot agree with my dissenting colleague’s conclusion that if
a regular classroom teacher had participated on the IEP team “there was
[not] a realistic possibility that it would have resulted in a different assign-
ment for M.L.” Dissent at page 646.
M.L. v. FEDERAL WAY SCHOOL DISTRICT 635
CLIFTON, Circuit Judge, dissenting:
I agree with my colleagues on many of the important issues
in this case. In particular, I join in Sections I, II-A, II-C,1 and
III of Judge Alarcón’s opinion, and in Section I of Judge
Gould’s opinion. In English, that means that I agree with both
Judge Alarcón and Judge Gould that the school district should
have included a regular classroom teacher on the IEP team
and that the failure to do so constituted a procedural violation
of the IDEA. I also agree with my colleagues that the school
district’s procedural error did not prevent M.L.’s parents from
participating in the formation of the IEP. To the extent that
M.L.’s parents enjoyed limited participation it was because
the parents voluntarily removed themselves from the process.
Finally, I agree with Judge Gould, as expressed in Section I
of his opinion, that a structural error analysis is not supported
by our caselaw and has no place in the IDEA context. As
Judge Gould correctly observes, a procedural violation consti-
tutes a denial of a free and appropriate public education only
when it results in a lost educational opportunity for the child
or significantly restricts parental participation in formation of
the IEP.
I part with my colleagues in the application of these princi-
ples to this case, however, and reach a different conclusion.
Specifically, I conclude that the failure to include a regular
classroom teacher on the IEP team did not result in the loss
of an educational opportunity for M.L. or deny him a free
appropriate public education. Accordingly, I respectfully dis-
sent.
1
To be precise, while I agree with the main point of Section II-C, which
is that the school district violated the procedural requirements of the
IDEA, I do not join in the last sentence of that section. In that sentence
Judge Alarcón applies the “structural defect” analysis contained in Section
II-B of his opinion to reach the conclusion that the district court’s judg-
ment must be reversed. I disagree with both the structural defect approach
and the conclusion. Nor do I join in the footnote accompanying that sen-
tence.
636 M.L. v. FEDERAL WAY SCHOOL DISTRICT
Both of my colleagues focus on Plaintiffs’ challenge to the
procedures employed by the school district, which was the
issue that Plaintiffs emphasized on appeal. The district court
apparently concluded that the IDEA did not require the IEP
team to include a regular classroom teacher, a view that all
three of us on this panel agree was incorrect. The district court
did not rely only on that erroneous legal conclusion to support
its decision, however. Perhaps recognizing that it was a close
question, the district court observed that “even if” the failure
to include a regular classroom teacher amounted to a proce-
dural violation, “such a violation would not necessarily con-
stitute the denial of a FAPE.” The district court relied on W.G.
v. Board of Trustees of Target Range School District, 960
F.2d 1479, 1484 (9th Cir. 1992), and Amanda J. v. Clark
County School District, 267 F.3d 877, 892 (9th Cir. 2001) —
the same cases cited in my colleagues’ opinions — and deter-
mined that “the question whether the alleged procedural viola-
tion amounted to the denial of a FAPE depends on whether
or not M.L. suffered a substantive loss of educational oppor-
tunity.” That is essentially the same legal standard adopted by
a majority of our panel (consisting of Judge Gould and me),
as expressed in Section I of Judge Gould’s opinion. In large
part, it appears, because of the way the case was framed in the
arguments made by the parties, the district court went on to
address that question using somewhat different terminology.
Nonetheless, the district court made factual findings that point
to the conclusion that M.L. did not suffer a substantive loss
of educational opportunity. I agree with the district court’s
findings and reach the same conclusion.
Plaintiffs vigorously argued to the district court that the
school district had violated the substantive requirements of
the IDEA, as well as its procedural requirements. A substan-
tive violation alleged by Plaintiffs was that the school district
had failed to “mainstream” M.L. to the maximum extent pos-
sible. The plan that the IEP team prepared for M.L. did not
provide for placement in a “regular” or “integrated” kinder-
garten classroom, as his parents wanted, but in a “self-
M.L. v. FEDERAL WAY SCHOOL DISTRICT 637
contained” classroom with other disabled and special educa-
tion students. The district court reviewed the IEP team’s plan
and discussed Plaintiffs’ substantive objections to it. While
not framing that discussion in terms of a “loss of educational
opportunity,” the district court made detailed findings of fact
to the effect that the program developed by the IEP team was
the best placement for M.L., because that placement maxi-
mized the academic and non-academic benefits available to
him.
The district court’s factual findings are enlightening:
M.L. could hope to gain little academic benefit from
a placement in a regular kindergarten classroom
focused on developing reading skills. As the District
points out, M.L. is almost completely non-verbal. He
has virtually no communication skills, and at the
time of his evaluation he was not yet toilet trained.
His cognitive ability places him at the first percentile
level on the Battelle Developmental Inventory. . . .
[A] kindergarten classroom geared toward teaching
children reading skills is a very different environ-
ment from preschool.
The District’s experts at the due process hearing uni-
formly identified the special education placement at
Wildwood Elementary as the superior option, and
Petitioners offered no expert testimony in rebuttal.
The administrative law judge found that in a regular
classroom environment M.L. would interact primar-
ily with his one-on-one aide as opposed to his peers.
. . . M.L. lacks the independent skills necessary even
to socialize with other children in an integrated
classroom setting. . . . The Wildwood special educa-
tion placement . . . offers the best of both worlds; it
teaches children with M.L.’s challenges to function
without the constant presence of an adult, and it also
638 M.L. v. FEDERAL WAY SCHOOL DISTRICT
offers mainstreaming opportunities throughout the
week that provide opportunities for socialization
with non-handicapped children. The expert testi-
mony in this case is unanimous that Wildwood is the
least restrictive option for M.L.
The Court finds no significant non-academic benefit
to M.L. from a regular classroom placement.
[T]he Court must . . . find that M.L.’s disruptive
presence in the classroom would likely impair the
education of the normally developing children.
On balance, the Court cannot find that the District
failed to mainstream M.L. to the maximum extent
possible in developing his IEP.
The district court’s factual findings are consistent with
those of the administrative law judge in the due process hearing.2
Her 73-page Findings of Fact, Conclusions of Law, and Order
thoroughly supports the district court’s conclusion. Specifi-
cally, the administrative law judge found:
[T]he evidence establishes that [M.L.] has no
expected opportunity for making meaningful aca-
demic progress in the . . . regular education kinder-
garten classroom. . . . While some autistic children
do well in an integrated classroom if they have high
skill levels and can attend to directions, the over-
whelming evidence establishes that [M.L.] has diffi-
culty attending to directions, has very low skill
levels across all domains, and had difficulty making
transitions and learning routines. Therefore, [M.L.’s]
educational opportunities in a self-contained class-
room are better than those in a [regular] classroom.
2
Plaintiffs did not introduce new evidence in district court. The record
before the district court (and before us) was the same record that was
before the administrative law judge.
M.L. v. FEDERAL WAY SCHOOL DISTRICT 639
The level of support[ ] that [M.L.] needs will inter-
fere with his ability to make non-academic progress
in a regular education environment, even with a
trained staff assistant. [M.L.] will be dependent on
his assistant, which means he will have less opportu-
nity to interact with peers. His day will be spent
interacting with the adult assistant and not his peers.
Therefore, placement in a general education class-
room may in fact be more restrictive than a self-
contained classroom.
The evidence establishes that the self-contained
classroom at Wildwood will provide [M.L.] with
opportunities for socialization and modeling of peers
with normal behaviors and communications skills.
Here, the evidence establishes that [M.L.] has
extremely disruptive behaviors and must be moni-
tored constantly by a 1:1 aide. . . . Until [M.L.] is
able to increase and generalize his receptive and
expressive communication skills, and is able to
attend to adult directions, he will continue displaying
behaviors such as whining, crying, biting, pulling on
others, scratching, laying down on the floor and
throwing fits. Although this behavior would be
addressed by his 1:1 aide, it would nonetheless be
distracting to the teacher and the other students.
The findings by district court and by the administrative law
judge constitute a factual determination that the program
developed by the IEP team was the best placement for M.L.
because the academic and non-academic benefits to M.L.
were maximized by placement in a self-contained classroom,
rather than a regular kindergarten classroom. The evidence
supporting that conclusion was overwhelming. This factual
determination necessarily means that, even though the IEP
plan for M.L. was prepared through a procedurally flawed
640 M.L. v. FEDERAL WAY SCHOOL DISTRICT
process, the plan prepared by that team did not result in a loss
of educational opportunity for M.L.
It is important to recognize that the district court did not
simply determine that Plaintiffs failed to state a substantive
violation of the IDEA. The statute requires only that a dis-
abled student be given an “appropriate” education. There is no
substantive mandate that a school district provide the best
program possible. As the Supreme Court observed in Board
of Education v. Rowley, 458 U.S. 176 (1982), the statute con-
tains “elaborate and highly specific procedural safeguards”
but only “general and somewhat imprecise substantive admo-
nitions.” 458 U.S. at 205. Thus, in reviewing actions brought
under the statute, courts are instructed to make a twofold
inquiry:
First, has the State complied with the procedures set
forth in the Act? And second, is the individualized
educational program developed through the Act’s
procedures reasonably calculated to enable the child
to receive educational benefits? If these requirements
are met, the State has complied with the obligations
imposed by Congress and the courts can require no
more.
Id. at 206-07. The Court focused on procedure because “ade-
quate compliance with the procedures prescribed would in
most cases assure much if not all of what Congress wished in
the way of substantive content in an IEP.” Id. at 206. Accord-
ingly, if the process used to prepare an IEP was procedurally
correct, the law does not require that the services “be suffi-
cient to maximize each child’s potential.” Id. at 198. The pro-
gram need only be “reasonably calculated to enable the child
to receive educational benefits.” Id. at 207.
We have concluded that the process used to prepare the IEP
for M.L. was not procedurally correct, so a tougher substan-
tive standard should be applied. Our caselaw defines that
M.L. v. FEDERAL WAY SCHOOL DISTRICT 641
tougher standard in terms of whether there has been a “loss
of educational opportunity.” The district court in this case also
applied a tougher substantive standard. The district court not
only concluded that the program prepared for M.L. was “rea-
sonably calculated” to provide M.L. with a FAPE (the stan-
dard applicable in the absence of procedural error, under
Rowley), but also that the plan was the best program for M.L.
That being so, the district court properly held that even if
there had been error in the composition of the IEP team, M.L.
had not been denied a free appropriate public education.3
Our caselaw tells us that not all procedural errors amount
to violations of the statute. Rather, only a procedural error that
results in a lost educational opportunity violates the law. In
my view, the factual findings of the district court demonstrate
3
Judge Alarcón takes issue with my reliance on the district court’s find-
ing, not because he challenges the finding itself, but because he disagrees
with my reliance upon that finding to conclude that the procedural error
here was harmless. He criticizes my approach as being “at odds with” the
two-step inquiry set forth in Supreme Court’s decision in Rowley (and
quoted in the text above), arguing that I have jumped to the substantive
second step in order to circumvent the procedural first step. Ante at 619
n.9. I respectfully disagree. I give the same answer to the first Rowley
question as both of my colleagues do: no, the school district has not com-
plied with the procedures set forth in the Act. But Rowley does not say
what happens when the answer to the first question is “no.” Our court has
previously held, and a majority of this panel holds again here, that a proce-
dural error violates the Act only when it results in a lost educational
opportunity for the child. There is nothing in Rowley which precludes con-
sideration of the substantive impact on the child in determining whether
there has been a lost educational opportunity due to a procedural error.
Nor does my approach involve the second Rowley question. Instead, the
district court applied what I described above as a “tougher substantive
standard.” The second question under Rowley asks only whether the pro-
gram was “reasonably calculated” to enable the child to receive educa-
tional benefits. The district court went beyond that here to find something
more, that the proposed plan was the best program for M.L. That finding
relates to the second step of Rowley in that it considers the substantive
impact on the child rather than the procedural process employed to create
the plan, but it is not the same inquiry.
642 M.L. v. FEDERAL WAY SCHOOL DISTRICT
that M.L. did not suffer a lost educational opportunity. The
program outlined by the IEP would have maximized both the
academic and non-academic benefits for him, would have
mainstreamed him to the maximum extent possible, and was
uniformly identified by the experts who testified as superior
to the regular classroom placement that M.L.’s parents
sought. The statute does not require anything more than that.
Even if the process leading to the program was deficient, the
program itself was not, and thus the student was not injured
— M.L. did not lose an educational opportunity. The IDEA
should not be interpreted to impose liability on a school that
seeks to provide the best possible program.
The clearly erroneous standard applies to a district court’s
findings of fact in IDEA cases where, as here, the decision
below relied on a written administrative record.4 Gregory K.
4
Judge Gould maintains, at 631 n.9, that “the question of whether M.L.
has ‘los[t] an educational opportunity’ under the IDEA is a mixed question
of law and fact which we review de novo.” (citing Gregory K., 811 F.2d
at 1310; Target Range, 960 F.2d 1482) (alteration in original). Our
caselaw, however, provides only that the broad substantive issue —
“whether the school district’s proposed IEP was a free appropriate public
education” — is a mixed question of fact and law that is reviewed de
novo. Gregory K., 811 F.2d at 1310; accord Target Range, 960 F.2d 1482
(internal quotation marks omitted).
The question before us is more limited: whether the procedural error at
issue caused a loss of educational opportunity for M.L. That question is
primarily a factual one. It requires consideration of M.L.’s physical and
cognitive limitations, the placements proposed in the challenged IEP, the
alternative placements, and the expert testimony and other evidence
regarding the appropriate placement for M.L. The only legal component
is the meaning of the phrase “a lost educational opportunity.” The marked
predominance of factual over legal issues in our inquiry is confirmed by
the relevant portion of Judge Gould’s opinion, Section II, which, in five
pages of analysis, makes three factual arguments, just one legal argument,
and does not cite to a single case, other than for the standard of review.
Where a mixed question of law and fact is primarily factual in nature, we
apply the clearly erroneous standard of review. Amanda J., 267 F.3d at
887.
M.L. v. FEDERAL WAY SCHOOL DISTRICT 643
v. Longview Sch. Dist., 811 F.2d 1307, 1310 (9th Cir. 1987).
For a factual finding to be considered “clearly erroneous,” we
must be left with the “definite and firm conviction that a mis-
take has been committed.” Amanda J., 267 F.3d at 887.
In applying the “loss of educational opportunity” standard
to the facts of this case, Judge Gould’s opinion does not chal-
lenge any of the district court’s factual findings, let alone
explain how those factual findings are “clearly erroneous.”
Instead, Judge Gould offers one legal reason and three factual
reasons for reversing the district court. I am not persuaded.
The first reason is the statutory preference for mainstream-
ing to “the maximum extent appropriate.” Opinion of Judge
Gould, at 632 (quoting 20 U.S.C. § 1412(a)(5)(A)). Judge
Gould builds on the statutory preference for mainstreaming,
“when feasible,” by highlighting, at 632-33, the benefits of
placing disabled students in regular education settings. As the
district court’s order expressly stated, however, the “expert
testimony in this case is unanimous that Wildwood [special
education placement] is the least restrictive option for M.L.”
Given the entirely one-sided expert testimony regarding the
appropriate placement of M.L., the district court was not
wrong in concluding that the district did “mainstream M.L. to
the maximum extent possible in developing his IEP.” Judge
Gould does not explain why the district court’s detailed dis-
cussion of mainstreaming is clearly erroneous or in error
under any standard of review. Nor does Judge Gould identify
his reasons for believing that the IEP prepared by the school
district failed to mainstream M.L. “to the maximum extent
feasible.” The naked observation that mainstreaming is pre-
The relevant finding of the district court is even narrower than that. The
district court found that the placement recommended by the IEP team was
the best placement for M.L. That is a purely factual determination, not a
legal one or a mixed law and fact question. Thus, it should be subject to
clear error review.
644 M.L. v. FEDERAL WAY SCHOOL DISTRICT
ferred and can be beneficial to disabled children does not
mean that it is right for every single child. The findings of the
district court deal with M.L. and cite unanimous expert testi-
mony that mainstreaming for that child was not appropriate
under the circumstances.
The second reason given by Judge Gould is that M.L.’s pre-
school teacher in the Tukwila School District, Ms. Wicks,
informed the school district that M.L. had made “good prog-
ress” in her class and recommended that M.L. remain in a reg-
ular education classroom during his kindergarten year.
Opinion of Judge Gould, at 633. Both the district court and
the administrative law judge were aware of and considered
Ms. Wicks’ recommendation, as did the IEP team and the
school district. Notwithstanding Ms. Wicks’ recommendation,
the district court and the administrative law judge both found,
as a factual matter, that M.L. would be better served by the
IEP prepared by the district. As the administrative law judge
observed, even Ms. Wicks “admitted that she did not expect
[M.L.] to achieve much academic success in a mainstream
placement.” And she also recognized that a regular classroom
placement would not work for M.L. much longer, since, as
noted by the administrative law judge, “in her opinion, the
only option [M.L.] would have after one year in an integrated
kindergarten would be placement in a self-contained class-
room for at least part of the day and mainstream[ing] during
non-academic activities.” Ms. Wicks’ recommendation is not
nearly strong enough to support a conclusion that the district
court was clearly erroneous in finding, as the administrative
law judge had found, that a self-contained classroom pre-
sented the better kindergarten placement for M.L.5 It is surely
5
Among other factors, I note that Ms. Wicks’ recommendation for a
regular kindergarten classroom placement was first made before M.L.
moved with his family to the Federal Way School District. It is not sur-
prising that the IEP team would take into account what happened during
the week M.L. that subsequently spent in Ms. Ramsey’s regular kindergar-
ten classroom. As described in Judge Alarcón’s opinion, at 596-97, and
more extensively developed in the record, that week in a regular classroom
setting was not a positive experience for M.L. or anyone else involved.
M.L. v. FEDERAL WAY SCHOOL DISTRICT 645
not the case that a prior preschool teacher’s recommendation
is determinative and binding on the school district.6
The third reason identified by Judge Gould, at 633, is sim-
ply the fact of the procedural violation: the failure to include
a regular classroom teacher in the IEP planning meeting. But
the fact that there was a procedural violation says nothing
about whether that violation had a substantive impact; it is
simply the reason for asking the question. Judge Gould prop-
erly rejects the per se rule applied by Judge Alarcón and rec-
ognizes that our caselaw establishes that not all procedural
violations result in the denial of a FAPE. The fact of the pro-
cedural violation is not a fact indicating that M.L. actually lost
an educational opportunity as a result.
The final reason given by Judge Gould, at 633, is that
“M.L.’s past IEP and placement demonstrated that it was at
least possible to conclude that M.L. could be placed in a regu-
lar education classroom.” Anything is possible, but it is highly
unlikely that including a regular classroom teacher on the IEP
team would have resulted in a recommendation that M.L. be
placed in a regular kindergarten classroom, as I will explain
below. More importantly, as the district court found, such a
placement would not have been the best placement for M.L.
In being denied such a placement, he did not lose an educa-
tional opportunity. In broader terms, by proposing a place-
ment which would have better served his needs, the school
district did not fail to provide him with a free appropriate pub-
lic education, the primary requirement of the IDEA.
6
It is important to note the procedural posture of this case. We are not
sitting in review of an ordinary summary judgment ruling, where we scour
the record for disputed issues of material fact. If that were the posture, Ms.
Wicks’ recommendation might suffice to create a genuine issue of mate-
rial fact. But here, we are asked to determine whether the district court
erred in finding that M.L.’s IEP maximized his educational opportunities.
Unless Ms. Wicks’ recommendation outweighed the mountain of contrary
evidence, including the unanimous expert testimony, we should affirm the
district court.
646 M.L. v. FEDERAL WAY SCHOOL DISTRICT
The principal aim of the statute is to improve the education
provided to the affected children. See 20 U.S.C. § 1400(c)(1)
(“Improving educational results for children with disabilities
is an essential element of our national policy . . . .”). That goal
is not served by satisfying the parents’ desire for a placement
which would not have maximized the benefits for the child.
The law could have been written to give parents of a disabled
child absolute power over the placement decision, but it was
not. Certainly parents should play an important role and must
be included within the process, and that is a key part of the
procedural obligation imposed by IDEA. But IDEA does not
and should not impose liability on a school when the IEP pro-
vides for the best program for the student, though his parents
want a different placement. Even if there was procedural error
in preparing this IEP, the student here was not harmed.
If we need to consider what would have happened if a regu-
lar classroom teacher had participated on the IEP team, I do
not think that there was a realistic possibility that it would
have resulted in a different assignment for M.L. If a regular
classroom teacher had been present, that teacher along with
the rest of the IEP team would necessarily have considered
what happened during the five days that M.L. was in Ms.
Ramsey’s regular kindergarten class in the Federal Way dis-
trict. An instructional assistant was assigned to M.L. on a one-
on-one basis because his needs were so great that he could not
be dealt with as part of the class as a whole. There was a dif-
ferent instructional assistant every day, because each one quit
after a single day. M.L. was allowed to listen to his favorite
music through headphones while in class, to keep him under
control, which meant that his involvement with the rest of the
class was limited at best. Though M.L.’s mother thought that
M.L. was teased by other students, she acknowledged herself
that M.L. did not appear to be aware of it, because he had his
headphones on most of the time. After five days, the mother
removed M.L. from the classroom and refused to return. With
that history, the proposition that Ms. Ramsey or any other reg-
ular classroom teacher would have attempted to persuade the
M.L. v. FEDERAL WAY SCHOOL DISTRICT 647
other IEP team members to place M.L. in another regular kin-
dergarten classroom is dubious.
It is even more unlikely that any such person would have
succeeded in persuading the other members of the IEP team.
The regular classroom teacher would not have been the final
decisionmaker. That teacher — be it Ms. Rowley, Ms. Wicks,
or someone else — would have been only one member of the
team. And the team had much more to go on than just the
reports of M.L.’s previous teachers. Prior to the IEP team
meeting, the district formed a separate multidisciplinary team,
including a school psychologist, a speech and language
pathologist, a certified occupational therapist, and M.L.’s
mother, to evaluate the student. That team also recommended
placement in a special education program tailored to M.L.’s
needs, rather than in a regular kindergarten classroom. That
recommendation matches the unanimous judgment of all the
experts presented to the administrative law judge and the dis-
trict court. Under those circumstances, it was not reasonably
possible that including a regular classroom teacher in the IEP
team meeting would have resulted in an IEP that placed M.L.
in a regular education classroom during his kindergarten year.
My colleagues are hesitant to shrug off lightly the proce-
dural error made here and understandably so. The procedural
safeguards of the IDEA are important and should be followed
in all cases. But in light of the overwhelming evidence that
the self-contained placement maximized the academic and
non-academic benefits for M.L., I cannot agree that the dis-
trict court’s factual findings were erroneous. Nor can I dis-
agree with the conclusion of the district court that the school
district did not deny M.L. a free appropriate public education.
Accordingly, I respectfully dissent.