D.B. Ex Rel. Roberts v. Santa Monica-Malibu Unified School District

FILED
NOT FOR PUBLICATION JUN 01 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
D.B., by and through her Guardian Ad No. 13-55665
Litem Reina Roberts; REINA ROBERTS,
D.C. No. 2:12-cv-03059-SVW-
Plaintiffs - Appellees, PJW
v.
MEMORANDUM*
SANTA MONICA-MALIBU UNIFIED
SCHOOL DISTRICT,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted May 6, 2015
Pasadena, California
Before: FISHER, BEA and FRIEDLAND, Circuit Judges.
Santa Monica-Malibu Unified School District appeals the district court’s
final order awarding D.B. reimbursement for the cost of tuition at the Westview
School for the 2010-11 school year, related educational expenses and attorney’s
fees and costs. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. The District argues D.B. did not allege in her administrative complaint
that the District’s failure to include D.B.’s parents at the June 8, 2010 meeting was
a procedural violation of the Individuals with Disabilities Education Act (IDEA),
20 U.S.C. § 1400 et seq. The District has waived this argument by failing to raise
it in the district court. See In re Mercury Interactive Corp. Sec. Litig., 618 F.3d
988, 992 (9th Cir. 2010).
2. The district court properly concluded the District’s failure to include
D.B.’s parents at the June 8 meeting was a procedural violation of the IDEA. The
IDEA’s implementing regulations require that parents participate in meetings
concerning the formulation of an Individualized Education Program (IEP) and the
educational placement of their child. See 34 C.F.R. § 300.501(b). An agency can
make a decision without the parents only if it is unable to obtain their participation,
which was not the case here. See id. § 300.501(c)(4); Shapiro ex rel. Shapiro v.
Paradise Valley Unified Sch. Dist. No. 69, 317 F.3d 1072, 1078 (9th Cir. 2003)
superseded on other grounds by 20 U.S.C. § 1414(d)(1)(B).
The District has not shown that it was required to meet before the end of the
2009-10 school year to formulate an IEP for the 2010-11 school year. Therefore, it
was not faced with “the situation of complying with one procedural requirement of
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the IDEA or another.” Doug C. v. Hawaii Dep’t of Educ., 720 F.3d 1038, 1046
(9th Cir. 2013).
3. The district court properly concluded the procedural violation denied
D.B. a free appropriate public education in the 2010-11 school year. See Doug C.,
720 F.3d at 1044-47; Amanda J. ex rel. Annette J. v. Clark Cnty. Sch. Dist., 267
F.3d 877, 892 (9th Cir. 2001). “Procedural violations that interfere with parental
participation in the IEP formulation process undermine the very essence of the
IDEA.” Amanda J., 267 F.3d at 892. Proceeding without the child’s parents
cannot be justified by the scheduling unavailability of District employees; the
attendance of parents at IEP Team meetings “must take priority over other
members’ attendance.” Doug C., 720 F.3d at 1045; see also Shapiro, 317 F.3d at
1078 (holding a school district may not “simply prioritize[] its representatives’
schedules over that of [the] parents”). Furthermore, even if D.B.’s parents already
had decided to enroll D.B. at the Westview School, their exclusion was not
permissible. See Anchorage Sch. Dist. v. M.P., 689 F.3d 1047, 1055 (9th Cir.
2012) (“[T]he IDEA, its implementing regulations, and our case law all emphasize
the importance of parental involvement and advocacy, even when the parents’
preferences do not align with those of the educational agency.”).
AFFIRMED.
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