Doug C. Ex Rel. Spencer C. v. State of Hawaii Department of Education , 720 F.3d 1038 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOUG C., individually and on behalf No. 12-15079
of his minor child; SPENCER C., a
minor child, D.C. No.
Plaintiffs-Appellants, 1:11-cv-00441-
KSC
v.
STATE OF HAWAII DEPARTMENT OF OPINION
EDUCATION ; KATHRYN MATAYOSHI,
in her official capacity as Acting
Superintendent of Hawaii Public
Schools,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
Kevin S. Chang, Magistrate Judge, Presiding
Argued and Submitted
October 16, 2012—Honolulu, Hawaii
Filed June 13, 2013
Before: Stephen Reinhardt, Sidney R. Thomas,
and Richard A. Paez, Circuit Judges.
Opinion by Judge Paez
2 DOUG C. V . STATE OF HAWAII DEP’T OF EDUC.
SUMMARY*
Individuals with Disabilities Education Act
Reversing the district court’s judgment, the panel held
that the Hawaii Department of Education violated the
Individuals with Disabilities Education Act by holding a
student’s annual individualized education program meeting
without the participation of a parent.
The panel held that the Department of Education denied
the student a free appropriate public education by holding the
IEP meeting without the parent even though the parent did
not affirmatively refuse to attend, but rather actively sought
to reschedule the meeting in order to participate. The panel
remanded the case for the district court for further
proceedings regarding the parent’s entitlement to
reimbursement of private school tuition.
COUNSEL
Keith H.S. Peck (argued), Honolulu, Hawaii; and Robert E.
Badger, Badger Arakaki, LLC, Honolulu, Hawaii, for
Plaintiffs-Appellants.
David M. Louie, Attorney General, and Michelle M.L. Puu
(argued) and Holly T. Shikada, Deputy Attorneys General,
Honolulu, Hawaii for Defendants-Appellees.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DOUG C. V . STATE OF HAWAII DEP’T OF EDUC. 3
OPINION
PAEZ, Circuit Judge:
Plaintiff Doug C., individually and on behalf of his son,
Spencer C., appeals the district court’s judgment finding that
the defendant, the Hawaii Department of Education, did not
deny Spencer a free appropriate public education (“FAPE”),
and thus did not violate the Individuals with Disabilities
Education Act (“IDEA”), by holding an annual individualized
education program (“IEP”) meeting without the participation
of a parent. Parental participation in the IEP and educational
placement process is central to the IDEA’s goal of protecting
disabled students’ rights and providing each disabled student
with a FAPE. 20 U.S.C. § 1400(d); Bd. of Educ. v. Rowley,
458 U.S. 176, 205–06 (1982). We conclude that the
Department violated the IDEA’s explicit parental
participation requirements. The Department held Spencer’s
annual IEP meeting without parental participation even
though Doug C. did not “affirmatively refuse[] to attend,” but
rather actively sought to reschedule the meeting in order to
participate. Shapiro v. Paradise Valley Unified Sch. Dist.,
317 F.3d 1072, 1078 (9th Cir. 2003), superseded on other
grounds by 20 U.S.C. § 1414(d)(1)(B). By denying Doug C.
the opportunity to participate in the IEP process, the
Department denied Spencer a FAPE. See id. at 1079. We
have jurisdiction under 28 U.S.C. § 1291, and we reverse.
The IEP meeting in question changed Spencer’s
placement from Horizons Academy, a private special
education facility, to the Workplace Readiness Program at
Maui High School. Pending the outcome of these
administrative and judicial review proceedings, Doug C.
continued Spencer’s placement at Horizons Academy at his
4 DOUG C. V . STATE OF HAWAII DEP’T OF EDUC.
own expense. We remand to the district court for further
proceedings regarding Doug C.’s entitlement to
reimbursement of Spencer’s private school tuition. Because
we conclude that the Department denied Spencer a FAPE,
Doug C. is entitled to reimbursement if he can establish that
“the private school placement was proper under the Act.”
Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 15
(1993).
I.
Spencer is an 18-year-old student in the Maui District of
the Hawaii Department of Education.1 He was diagnosed
with autism at age two. As a result of his condition, the
Department determined that Spencer is eligible to receive
special education and other related services, and his
educational rights are protected by the IDEA. Beginning in
fifth grade, Spencer’s IEP placed him at a private special
education facility, Horizons Academy, at the expense of the
Department of Education. The Department held Spencer’s
annual IEP meeting on November 9, 2010 despite Doug C.’s
inability to attend the meeting that day. At that meeting, the
Department changed Spencer’s educational placement,
moving him to a program at Maui High School, his local
public school.
The central issue in this case is whether the Department’s
efforts to include Doug C. in the November IEP meeting
are sufficient to meet the requirements of the IDEA. A close
review of the events leading up to the IEP meeting is
1
Spencer was 15-years-old when the IEP meeting that is the subject of
this appeal took place.
DOUG C. V . STATE OF HAWAII DEP’T OF EDUC. 5
therefore critical.2 The IEP team and Doug C. first discussed
the annual IEP meeting date during a student support meeting
in September 2010.3 Kaleo Waiau, a special education
coordinator at Maui High School, testified that Doug C. and
members of the education team all agreed that the IEP
meeting would be held on October 28. Doug C. testified that
he thought that they had only agreed, tentatively, to meet
sometime in late October. In any event, Waiau called Doug
C. on October 22 to confirm the October 28 meeting. Doug
C. stated that he was unavailable that day, and they settled
instead on either November 4 or 5 (the testimony on which is
inconsistent). Doug C. testified that the November date was
also tentative, subject to checking his calendar and
confirming. The following day, Doug C. called Waiau to let
him know that he was not available on that day, and they
settled firmly on November 9 instead.
On the morning of November 9, Doug C. e-mailed Waiau
at 7:27 a.m. He explained that he was sick and therefore
unable to attend the IEP meeting. He suggested rescheduling
the meeting for the following week, on either November 16
or 17. The annual review deadline for Spencer’s IEP was
Saturday, November 13. According to Waiau, some of the
members of the IEP team were not available on Friday,
November 12. Therefore, Waiau offered to reschedule for
either Wednesday, November 10, or Thursday, November 11,
accommodating the other members’ schedules while still
2
The facts, drawn from the testimony and other evidence presented at
a due process administrative hearing before a state hearing officer, are
mostly undisputed.
3
Spencer’s mother apparently found the IEP meetings too stressful to
attend.
6 DOUG C. V . STATE OF HAWAII DEP’T OF EDUC.
holding the meeting before the deadline. Doug C. responded
that he could possibly participate on either of those days, but
could not definitively commit to either day since he was ill
and could not guarantee that he would recover in time.
Waiau also suggested that Doug C. participate by phone or
the Internet. But Doug C. explained that (1) he wanted to be
physically present at his son’s IEP meeting and (2) he did not
feel physically well enough to participate meaningfully
through any means that day.
Waiau decided to go forward with the meeting on
November 9 as scheduled. He testified that he had already
asked “13 people on three separate occasions to change their
schedules and cancel other commitments” to schedule the
meeting. Therefore, without a firm commitment from Doug
C. for one of the two dates he proposed, Waiau refused to
reschedule the meeting. Waiau and the IEP team held the
meeting without the participation of Doug C. The only
Horizons Academy staff member on Spencer’s IEP team also
did not attend.
With these key participants absent, the IEP team changed
Spencer’s placement from Horizons Academy to the
Workplace Readiness Program at Maui High School. After
the meeting, Waiau sent Doug C. the new, completed IEP for
his review. The team held a follow-up IEP meeting on
December 7 with Doug C. and a staff member from Horizons.
At the follow-up meeting, the team reviewed the already
completed IEP “line by line.” Waiau testified that Doug C.
provided no substantive input, while Doug C. explained that
he rejected the IEP in its entirety because he was excluded
from the development process. No changes were made to the
IEP during the December 7 meeting.
DOUG C. V . STATE OF HAWAII DEP’T OF EDUC. 7
The day before the follow-up IEP meeting, Doug C. filed
a request for a due process hearing as provided for by the
IDEA. He argued, inter alia, that the lack of parental
participation in the IEP meeting denied Spencer a FAPE.
After a hearing, the administrative hearing officer issued a
decision finding that the Department did not deny Spencer a
FAPE and dismissed his claims for relief. The district court
affirmed, holding that plaintiffs “failed to show that
Defendant did not fulfill its statutory duty to ensure that Doug
was afforded an opportunity to participate at the November
9, 2010 IEP meeting.” Doug C. timely appealed.
II.
We review de novo questions of law, including the
question of whether an IEP provides a free appropriate public
education (FAPE). Shapiro, 317 F.3d at 1076. We review
the district court’s findings of fact for clear error, even when
they are based on an administrative record. Amanda J. v.
Clark Cnty. Sch. Dist., 267 F.3d 877, 887 (9th Cir. 2001).
The deference due to the administrative findings under the
IDEA is less than the high standard of deference for judicial
review of most agency actions. Id. But we must give “due
weight” to administrative findings, particularly when the
findings are “thorough and careful.” R.B. v. Napa Valley
Unified Sch. Dist., 496 F.3d 932, 937 (9th Cir. 2007) (internal
quotation marks and citations omitted).
III.
A.
In order to “ensure that the rights of children with
disabilities and parents of such children are protected,”
8 DOUG C. V . STATE OF HAWAII DEP’T OF EDUC.
20 U.S.C. § 1400(d)(1)(B), see also 34 C.F.R. § 300.1(b), the
IDEA guarantees a FAPE to children with disabilities,
20 U.S.C. § 1412(a)(1)(A), 34 C.F.R. § 300.101.4 When
analyzing whether an agency provided a student a FAPE, we
conduct a two-part inquiry. First, we must consider whether
“the State complied with the procedures set forth in the Act.”
Amanda J., 267 F.3d at 890 (quoting Rowley, 458 U.S. at206–07) (internal quotation marks omitted). Second, we must
determine whether the IEP is “reasonably calculated to enable
the child to receive educational benefits.” Id. A state must
meet both requirements to comply with the obligations of the
IDEA. Rowley, 458 U.S. at 207.
Harmless procedural errors do not constitute a denial of
FAPE. L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900,
910 (9th Cir. 2008). “‘However, procedural inadequacies that
result in the loss of educational opportunity, or seriously
infringe the parents’ opportunity to participate in the IEP
formulation process, clearly result in the denial of FAPE.’”
Shapiro, 317 F.3d at 1079 (quoting W.G. v. Bd. of Trs. of
Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 (9th
Cir. 1992)). Where a court identifies a procedural violation
4
Hawaii has fully implemented the purposes, guarantees, and
protections of the IDEA into its own regulatory structure. See Haw. Code
R. §§ 8-60-1 to 8-60-84; see also § 8-60-1(b) (“This chapter shall be
construed as supplemental to, and in the context of, the Individuals W ith
Disabilities Education Act . . . and other federal laws and regulations
relating to the provision of a free appropriate public education to a student
with a disability.”). Hawaii’s regulations mirror the language in the IDEA
regarding the IDEA’s purposes, the guarantee of a FAPE, and the
requirement of parent participation. Compare Haw. Code R. § 8-60-1(purposes), with 34 C.F.R. § 300.1 (same); Haw. Code R. § 8-60-3(guarantee of FAPE), with 34 C.F.R. § 300.101 (same); Haw. Code R. § 8-
60-46 (parent participation), with 34 C.F.R. § 300.322 (same).
DOUG C. V . STATE OF HAWAII DEP’T OF EDUC. 9
that denied a student a FAPE, the court need not address the
second prong. Id.Parental participation in the IEP and educational
placement process is critical to the organization of the IDEA.
See 20 U.S.C. § 1414(d)(1)(B)(i) (requiring the inclusion of
parents on the IEP team); 34 C.F.R. § 300.321(a)(1) (same);
20 U.S.C. § 1415(b)(1) (requiring opportunities for parents
“to participate in meetings with respect to identification,
evaluation and educational placement of the child”). Indeed,
the Supreme Court has stressed that the IDEA’s structure
relies upon parental participation to ensure the substantive
success of the IDEA in providing quality education to
disabled students:
[W]e think that the importance Congress
attached to these procedural safeguards cannot
be gainsaid. It seems to us no exaggeration
to say that Congress placed every bit as much
emphasis upon compliance with procedures
giving parents and guardians a large
measure of participation at every stage of
the administrative process as it did upon
the measurement of the resulting IEP
against a substantive standard. We think that
the congressional emphasis upon full
participation 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
substantive content in an IEP.
10 DOUG C. V . STATE OF HAWAII DEP’T OF EDUC.
Rowley, 458 U.S. at 205–06 (citation omitted); see also
Schaffer v. Weast, 546 U.S. 49, 53 (2005) (“The core of the
[IDEA] . . . is the cooperative process that it establishes
between parents and schools. . . . The central vehicle for this
collaboration is the IEP process.”); Honig v. Doe, 484 U.S.
305, 311 (1988) (“Congress repeatedly emphasized
throughout the [IDEA] the importance and indeed the
necessity of parental participation in both the development of
the IEP and any subsequent assessments of its
effectiveness.”) (emphasis added).
Echoing the Supreme Court, we have held that parental
participation safeguards are “[a]mong the most important
procedural safeguards” in the IDEA and that “[p]rocedural
violations that interfere with parental participation in the IEP
formulation process undermine the very essence of the
IDEA.” Amanda J., 267 F.3d at 882, 892. We have
explained that parental participation is key to the operation of
the IDEA for two reasons: “Parents not only represent the
best interests of their child in the IEP development process,
they also provide information about the child critical to
developing a comprehensive IEP and which only they are in
a position to know.” Id. at 882.
In accordance with the foregoing, the regulatory
framework of the IDEA places an affirmative duty on
agencies to include parents in the IEP process. The public
agency “responsible for providing education to children with
disabilities,” 34 C.F.R. § 300.33, is required to “take steps to
ensure that one or both of the parents of a child with a
disability are present at each IEP meeting or are afforded an
opportunity to participate” including providing ample notice
and “scheduling the meeting at a mutually agreed on time and
place.” 34 C.F.R. § 300.322(a). Moreover, if a parent cannot
DOUG C. V . STATE OF HAWAII DEP’T OF EDUC. 11
attend, the agency must offer other methods of participation
such as video or teleconferencing. 34 C.F.R. §§ 300.322(c),
300.328. Most importantly, a meeting may only be conducted
without a parent if “the public agency is unable to convince
the parents that they should attend.” § 300.322(d) (emphasis
added). And in that circumstance, the agency must keep a
detailed record of its attempts to include the parent. Id. In
Shapiro, we clarified the limited circumstances under which
a public agency can hold an IEP meeting without parental
participation. 317 F.3d at 1078. We held that parental
“involvement in the ‘creation process’ requires the [agency]
to include the [parents in an IEP meeting] unless they
affirmatively refused to attend.” Id. (emphasis added).
B.
Doug C. did not “affirmatively refuse[] to attend the
meeting,” id., nor could it be said that the Department was
“unable to convince” him to attend, 34 C.F.R. § 300.322(d).
To the contrary, Doug C. vigorously objected to the
Department holding an IEP meeting without him and asked
the Department to reschedule the meeting for the following
week. In response to the Department’s offer to reschedule for
either of the following two days, he agreed to try to attend
but, understandably, could not firmly commit to a meeting
date only one or two days later while he was sick. Despite
the foregoing, the Department went forward with the IEP
meeting without him, over his repeated objections, and, at
that meeting, decided to change Spencer’s educational
placement for the first time in six years. The Department’s
actions simply do not accord with the standard we set forth in
Shapiro.
12 DOUG C. V . STATE OF HAWAII DEP’T OF EDUC.
The fact that it may have been frustrating to schedule
meetings with or difficult to work with Doug C. (as the
Department repeatedly suggests) does not excuse the
Department’s failure to include him in Spencer’s IEP meeting
when he expressed a willingness to participate. We have
consistently held that an agency cannot eschew its affirmative
duties under the IDEA by blaming the parents. See
Anchorage Sch. Dist. v. M.P., 689 F.3d 1047, 1055 (9th Cir.
2012) (“[P]articipating educational agencies cannot excuse
their failure to satisfy the IDEA’s procedural requirements by
blaming the parents.”); see also Target Range, 960 F.2d at
1485 (holding that the school district could not blame
parents’ choice to leave an IEP meeting for its own failure to
create an IEP with the participation of the appropriate
parties). An agency cannot blame a parent for its failure to
ensure meaningful procedural compliance with the IDEA
because the IDEA’s protections are designed to benefit the
student, not the parent. As we explained in Amanda J.,
parental participation is key to providing the student an
adequate education because “[a]n IEP which addresses the
unique needs of the child cannot be developed if those people
who are most familiar with the child’s needs are not
involved.” 267 F.3d at 892.5 Because the Department’s
obligation is owed to the child, any alleged obstinance of
Doug C. does not excuse the Department’s failure to fulfill its
affirmative obligation to include Doug C. in the IEP meeting
5
The Department minimizes the importance of parental participation
under the IDEA when it argues that Doug C. would have had little to
contribute at the IEP meeting. The Department is in no position to
question the value of D oug C.’s input. Congress already answered that
question when it prioritized parental participation in the IEP process.
DOUG C. V . STATE OF HAWAII DEP’T OF EDUC. 13
when he expressed a willingness (indeed eagerness) to
participate, albeit at a later date.6
The Department’s central argument is that it could not
accommodate Doug C.’s request to reschedule because of the
impending annual IEP deadline on November 13. Even
assuming that the annual deadline should somehow trump
parental participation, the Department’s argument fails on the
facts of this case. Waiau, the coordinator of the IEP meeting,
testified that he refused to reschedule the meeting for the
Wednesday or Thursday before the deadline because Doug C.
could not firmly commit to either of those dates because of
his illness, even though Doug C. testified that he said that he
likely could attend. Waiau explained that he did not wish to
disrupt the other IEP’s members’ schedules without a firm
commitment.
This argument may seem reasonable but quickly unravels
because, under the IDEA, the attendance of Doug C.,
Spencer’s parent, must take priority over other members’
attendance for the reasons discussed above. Indeed, a parent
can consent to the absence of other team members at the
meeting. 20 U.S.C. § 1414(d)(1)(C). In Shapiro, we clearly
held that an agency cannot exclude a parent from an IEP
meeting in order to “prioritize[] its representatives’
schedules.” 317 F.3d at 1078. By refusing to reschedule the
meeting for Wednesday or Thursday, Waiau improperly
prioritized the schedules of the other members of the team
6
Of course, if the parent refuses to attend or is entirely unresponsive to
the agency’s requests to meet, the agency has a duty to move forward with
the IEP process. See, e.g., K.D. v. Dep’t of Educ., 665 F.3d 1110, 1124
(9th Cir. 2011). That is precisely the balance that the IDEA regulations
strike, as we recognized in Shapiro.
14 DOUG C. V . STATE OF HAWAII DEP’T OF EDUC.
over the attendance of Doug C. Moreover, Waiau also
testified that he did not offer Doug C. the option of meeting
on the Friday before the annual review deadline because other
members of the IEP team were not available to meet that day.
Once again, the Department improperly prioritized its own
representatives’ schedules and attendance over the attendance
of the parent.
Even if the Department’s theory of the case was
supported by the facts, the Department’s argument that it
absolutely could not reschedule the IEP meeting for a date
even a few days after the annual deadline in order to include
Doug C. is untenable. Waiau’s testimony suggests, and the
Department’s counsel represented at oral argument, that if the
annual deadline passed without a new IEP, services would
“lapse.” The district court took a similar position. We reject
this argument because it is premised on the erroneous
assumption that the Department is authorized (let alone
required) to cease providing services to a student if his annual
IEP review is overdue. The IDEA mandates annual review of
a student’s IEP. 20 U.S.C. §1414(d)(4); see also 34 C.F.R.
§ 300.324(b)(1)(i). However, the Department cites no
authority, nor could it, for the proposition that it cannot
provide any services to a student whose annual review is
overdue.
The more difficult question is what a public agency must
do when confronted with the difficult situation of being
unable to meet two distinct procedural requirements of the
IDEA, in this case parental participation and timely annual
review of the IEP. In considering this question, we must keep
in mind the purposes of the IDEA: to provide disabled
students a free appropriate public education and to protect the
educational rights of those students. 20 U.S.C. § 1400(d). It
DOUG C. V . STATE OF HAWAII DEP’T OF EDUC. 15
is also useful to consider our standard for determining when
a procedural error is actionable under the IDEA. We have
repeatedly held that “procedural inadequacies that result in
the loss of educational opportunity or seriously infringe the
parents’ opportunity to participate in the IEP formulation
process, clearly result in the denial of a FAPE.” Shapiro,
317 F.3d at 1079; see also Amanda J., 267 F.3d at 892.
When confronted with the situation of complying with one
procedural requirement of the IDEA or another, we hold that
the agency must make a reasonable determination of which
course of action promotes the purposes of the IDEA and is
least likely to result in the denial of a FAPE. In reviewing an
agency’s action in such a scenario, we will allow the agency
reasonable latitude in making that determination.
In this case, the Department was allegedly confronted
with two options: including Doug C. in the meeting and
missing the IEP annual deadline by several days or
proceeding with the IEP meeting without Doug C. but
meeting the annual deadline. As discussed supra, the
Supreme Court and this court have both repeatedly stressed
the vital importance of parental participation in the IEP
creation process. We have further held that delays in meeting
IEP deadlines do not deny a student a FAPE where they do
not deprive a student of any educational benefit. See A.M. v.
Monrovia, 627 F.3d 773, 779 (9th Cir. 2010) (“Whether or
not Defendant exceeded the thirty-day limit, A.M. suffered no
deprivation of educational benefit and therefore has no
claim.”). Under the circumstances of this case, the
Department’s decision to prioritize strict deadline compliance
over parental participation was clearly not reasonable.
There may, of course, be circumstances in which
accommodating a parent’s schedule would do more harm to
16 DOUG C. V . STATE OF HAWAII DEP’T OF EDUC.
the student’s interest than proceeding without the parent’s
presence at the IEP. For example, in A.M., it was appropriate
for the school to convene an IEP without the parents’
participation because the student was new to the school, and
therefore did not have any IEP in place, and the student’s
parents were unwilling to reschedule for an entire month after
having canceled a scheduled IEP review that was itself
already almost one month overdue. 627 F.3d at 780. We
trust, however, that such circumstances will be rare given the
central role parents have in helping to develop IEPs.
Finally, the Department argues that there was no violation
here because the Department held a follow-up IEP meeting
with Doug C. present on December 7. We rejected a similar
argument in Shapiro. We held that where an agency violates
the IDEA by producing a new IEP without the participation
of the child’s parents, “[a]fter-the-fact parental involvement
is not enough” because the IDEA contemplates parental
involvement in the “creation process.” Shapiro, 317 F.3d at
1078. It is uncontested that, at the time of the December 7
meeting, the new IEP was already completed and adopted.
Therefore, the after-the-fact meeting is not enough to remedy
the Department’s decision to hold the initial IEP meeting, in
which they created the IEP and changed Spencer’s placement,
without Doug C.
C.
We recognize that not every procedural violation results
in the denial of a FAPE, but procedural errors “that result in
the loss of educational opportunity, or seriously infringe the
parents’ opportunity to participate in the IEP formulation
process” do. Shapiro, 317 F.3d at 1079. The failure to
include Doug C. in the IEP meeting clearly infringed on his
DOUG C. V . STATE OF HAWAII DEP’T OF EDUC. 17
ability to participate in the IEP formulation process. That
reason alone is cause to conclude that Spencer was denied a
FAPE.
The procedural violation here also denied Spencer a
FAPE for the separate reason that it resulted in the denial of
an educational opportunity. A procedural error results in the
denial of an educational opportunity where, absent the error,
there is a “strong likelihood” that alternative educational
possibilities for the student “would have been better
considered.” M.L. v. Federal Way Sch. Dist., 394 F.3d 634,
657 (9th Cir. 2003) (Gould, J. concurring in part and
concurring in the judgment). Thus, an IEP team’s failure to
properly consider an alternative educational plan can result in
a lost educational opportunity even if the student cannot
definitively demonstrate that his placement would have been
different but for the procedural error. See id. Here, there is
a strong likelihood that the benefits of placement at Horizons
Academy, Doug C.’s preferred placement for his son, would
have been more thoroughly considered if Doug C. had been
present at the meeting. It is particularly likely that the merits
of continuing Spencer’s placement at Horizons Academy
were not adequately considered in light of the fact that the
IEP team member from the Academy was also absent.
Therefore, both because (1) Doug C.’s opportunity to
participate was seriously infringed and (2) the procedural
violation denied Spencer an educational opportunity by
causing the merits of his placement at Horizon Academy to
receive insufficient consideration, the Department denied
Spencer a FAPE.
18 DOUG C. V . STATE OF HAWAII DEP’T OF EDUC.
IV.
For the foregoing reasons, we reverse the district court’s
judgment and remand. On remand, the district court must
determine whether Doug C. is entitled to reimbursement for
the costs of maintaining Spencer at Horizons Academy during
the administrative and judicial review proceedings. Parents
who place their children in private schools pending review
proceedings under the IDEA are entitled to reimbursement if
(1) the public placement violated the IDEA and (2) “the
private school placement was proper under the Act.”
Florence Cnty. Sch. Dist. Four, 510 U.S. at 15. Spencer’s
placement at the Workplace Readiness Program at Maui High
School violated the IDEA because the placement was a result
of the November 9 IEP meeting. Neither the district court
nor the administrative hearing officer considered whether
Horizons was a proper placement under the Act. Therefore,
upon remand, the district court is directed to consider whether
Spencer’s placement at Horizons Academy was proper under
the Act and, if so, order reimbursement for Spencer’s private
placement during the course of the administrative and judicial
proceedings. Id.; 20 U.S.C. § 1415(i)(2)(C)(iii) (giving a
district court the power to “grant such relief as [it] determines
is appropriate”).
We note that a parent’s decision to place his child in a
private school is “proper” so long as the school the parent
selects “provides educational instruction specially designed
to meet the unique needs of a handicapped child, supported
by such services as are necessary to permit the child to
benefit from instruction.” C.B. ex rel. Baquerizo v. Garden
Grove Unified Sch. Dist., 635 F.3d 1155, 1159 (9th Cir. 2011)
(internal quotation marks and citation omitted). This standard
is met even if the private school provides “some, but not all”
DOUG C. V . STATE OF HAWAII DEP’T OF EDUC. 19
of the students educational needs; the placement need not
“maximize the[] child’s potential.” Id. (internal quotation
marks, citation, and italics omitted). Where, as here, the
private school selected by the parent is the same school that
the child has previously attended for several years under IEPs
that have been approved by all parties, we think it highly
unlikely that the placement does not represent a “proper”
placement.7 Nonetheless, we remand to permit the district
court to consider the question. The district court may remand
this issue to the state hearing officer to decide in the first
instance.
REVERSED and REMANDED.
7
Indeed, under the IDEA’s “stay put” provision, a child is typically
entitled to remain in his previous educational setting throughout the course
of any administrative and judicial proceedings. See 20 U.S.C. § 1415(j).
Here, however, Doug C. has not appealed the district court’s denial of his
motion for a stay put order, so we do not address whether he is entitled to
reimbursement on that basis.