J.W. v. Governing Board of East Whittier City School District , 473 F. App'x 531 ( 2012 )


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  •                                                                               FILED
    NOT FOR PUBLICATION                              MAR 28 2012
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    J.W., by and through K.K.W. Guardian Ad          No. 10-56356
    Litem K.K.W. and W.W.; et al.,
    D.C. No. 2:09-cv-02525-ODW-SS
    Plaintiffs-counter-defendants
    - Appellants,
    MEMORANDUM*
    v.
    GOVERNING BOARD OF EAST
    WHITTIER CITY SCHOOL DISTRICT
    and EAST WHITTIER CITY SCHOOL
    DISTRICT,
    Defendants-counter-claimants
    - Appellees.
    Appeal from the United States District Court
    for the Central District of California
    Otis D. Wright, District Judge, Presiding
    Argued and Submitted March 7, 2012
    Pasadena, California
    Before: THOMAS, WARDLAW, and BERZON, Circuit Judges.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    J.W. appeals the district court’s affirmance of a California Administrative
    Law Judge (“ALJ”) decision regarding his complaint under the Individuals with
    Disabilities Education Act (“IDEA,” or “the Act”), 
    20 U.S.C. § 1400
    , et seq. We
    have jurisdiction under 28 U.S.C. 1291 and we affirm. Because the parties are
    familiar with the factual and legal history of the case, we need not recount it here.
    I
    The district court did not abuse its discretion in affirming the ALJ’s witness
    credibility and weight determinations. As the trier of fact, the ALJ is in the best
    position to assess witness credibility and the appropriate weight of testimony.
    Therefore, “a finder of fact’s determination of credibility receives deference on
    appeal, because access to live testimony is important to the credibility finding.”
    Ms. S. ex rel. G. v. Vashon Island Sch. Dist., 
    337 F.3d 1115
    , 1127 (9th Cir. 2003),
    superseded on other grounds by 
    20 U.S.C. § 1414
    (d)(1)(B). “[C]redibility-based
    findings [of the ALJ] deserve deference unless non-testimonial, extrinsic evidence
    in the record would justify a contrary conclusion or unless the record read in its
    entirety would compel a contrary conclusion.” Amanda J. ex rel. Annette J. v.
    Clark Cnty. Sch. Dist., 
    267 F.3d 877
    , 889 (9th Cir. 2001) (quoting and then
    adopting the Third Circuit’s reasoning).
    2
    The record does not compel the conclusion that the ALJ erred. In fact, the
    ALJ analyzed credibility and weighed the evidence in a lengthy and thoughtful
    decision. There is sufficient evidence in the record to support the ALJ’s
    conclusions. Given the deferential standard of review, the district court did not err
    in affirming the ALJ.
    II
    The district court properly concluded that the school district did not commit
    a procedural IDEA violation that deprived J.W. of a Free and Appropriate Public
    Education (“FAFE”). A procedural violation constitutes a denial of FAPE if the
    inadequacy (1) resulted in the student losing educational opportunity; (2)
    significantly impeded the parents’ opportunity to participate in the decision making
    process; or (3) caused a deprivation of educational benefits. 
    20 U.S.C. § 1415
    (f)(3)(E)(ii); W.G. v. Bd. of Trustees, 
    960 F.2d 1479
    , 1383-84 (9th Cir. 1992).
    J.W. claims that he was denied a FAPE when the District’s Director of
    Special Education conversed with a third-party speech provider after J.W.’s
    individualized education program (“IEP”) team meeting. The District had to make
    a written IEP offer after J.W.’s parents and the District staff disagreed at the IEP
    meeting. In preparing this offer, the Director sought clarification from the speech
    provider regarding one speech goal on which there had been discussion, but no
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    agreement, at the meeting. The ALJ found that “the District’s modification of [the
    goal] arose directly out of the IEP meeting, and another IEP meeting was not
    required.” She also found that the goal alteration was “minor.” Thus, the ALJ
    found that the conversation at issue did not “significantly deprive [J.W.’s] [p]arents
    of meaningful participation in the IEP process . . . .” The record supports this
    conclusion, and the district court did not err in declining to grant relief.
    III
    The district did not err in concluding that the school district had complied
    with the substantive requirements of the IDEA. The record supports the
    conclusion that the school district provided an IEP that is “developed through the
    Act’s procedures [and] reasonably calculated to enable the child to receive
    educational benefits.” Bd. of Educ. v. Rowley, 
    458 U.S. 176
    , 206 (1982); see also
    
    20 U.S.C. §§ 1401
    (9), 1401(14), 1414(d); Seattle School District, No.1 v. B.S., 
    82 F.3d 1493
    , 1498-99 (9th Cir. 1996)).
    The IDEA does not require that a district “maximize the potential of each
    handicapped child commensurate with the opportunity provided nonhandicapped
    children.” Rowley, 
    458 U.S. at 200
    . Rather, the Act requires that districts offer “a
    basic floor of opportunity, [that is,] access to specialized instruction and related
    services which are individually designed to provide educational benefit to the
    4
    handicapped child.” 
    Id. at 201
    . Additionally, the IDEA requires that school
    districts offer placements in the “least restrictive environment” available to meet a
    student’s unique needs. See 
    20 U.S.C. § 1412
    (a)(5)(A); see also Sacramento City
    Unified School Dist. v. Rachel H., 
    14 F.3d 1398
    , 1404 (9th Cir. 1994) (adopting
    test to determine appropriate level of “mainstreaming”). The district court did not
    err in determining that the IEP satisfied these requirements. J.W.’s IEP contained
    an adequate statement of his present levels of academic achievement and functional
    performance, articulated measurable goals, and was reasonably calculated to
    provide an educational benefit in the least restrictive environment.
    AFFIRMED.
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