TIMOTHY O., individually; AMY O., individually; L. O., Timothy O. as guardian ad litem for his minor, Plaintiffs-Appellants,
PASO ROBLES UNIFIED SCHOOL DISTRICT, Defendant-Appellee
and Submitted: December 7, 2015, Pasadena, California
from the United States District Court for the Central
District of California. D.C. No. 2:12-cv-06385-JGB-JEM. Jesus
G. Bernal, District Judge, Presiding.
with Disabilities Education Act
panel reversed the district court's judgment in favor of
the defendant school district in an action brought under the
Individuals with Disabilities Education Act.
panel held that the school district violated the procedural
requirements of the IDEA by failing to formally assess a
student for autism, even though this was an area of suspected
disability. As a result, the school district was unable to
design an educational plan that addressed the student's
unique needs, and it denied him a free appropriate public
education. The panel remanded for determination of an
J.K. Tiffany (argued), Tiffany Law Group, Torrance,
California, for Plaintiffs-Appellants.
Beall (argued), Kronick, Moskovitz, Tiedmann & Girard,
Sacramento, California, for Defendant-Appellee.
Erickson André, Michael P. Curtis, and Irene
Tatevosyan, Nixon Peabody LLP, Los Angeles, California, for
Amicus Curiae Learning Rights Law Center.
R. Graves, Fountain Valley, California, as and for Amicus
Curiae California Association of Parent-Child Advocacy.
Almazan-Altobelli, Towson, Maryland, as and for Amicus Curiae
Council of Parent Attorneys and Advocates.
Tomsky and Chad J. Graff, Fagen Friedman & Fulfrost LLP,
Oakland, California, for Amicus Curiae California School
Boards Association's Education Legal Alliance.
Stephen Reinhardt, John T. Noonan, and Jacqueline H. Nguyen,
Circuit Judges. Opinion by Judge Reinhardt.
Center for Disease Control and Prevention estimates that
nearly one in sixty-eight children has autism spectrum
disorder, a neurodevelopmental disorder that is
characterized, in varying degrees, by difficulty
communicating and socializing and by restricted repetitive
behavior, interests, and activities. The disorder is
present from birth, or very early in development, and affects
children's ability to communicate ideas and feelings, to
use their imagination, and to develop relationships with
others. Every individual with autism spectrum disorder is
unique, although the main characteristics in
children--behavioral deficits in eye contact, responding to
one's name, joint attention behavior, pretend play,
imitation, nonverbal communication, and language
development--are measurable by eighteen months of
diagnosis and intervention is critical for the education of
children with autism. In fact, with early and appropriate
intervention, as many as 25% of children with early autism
will, at an early age, no longer meet the criteria for that
disorder. For the remaining children, intervention in the
child's preschool years greatly increases the likelihood
that the child will learn to verbally communicate. Indeed,
the success of early intervention techniques has lowered the
number of autistic children who will remain non-verbal
throughout their lifetime to fewer than 10%, down from
roughly 50% in the 1980s. Early intervention also minimizes
the secondary symptoms and disruptive behavior, such as
aggression, tantrums, and self-injury, that are displayed by
children with the disorder. If left untreated, however,
symptoms of autism spectrum disorder can become more severe
and require extensive and expensive therapeutic
Luke is a child with
autism. Under the Individuals with
Disabilities Education Act ( " IDEA" or " the
Act" ), 20 U.S.C. § § 1400-1487, the defendant
Paso Robles Unified School District (" Paso Robles"
) became responsible for providing Luke with a free
appropriate public education (" FAPE" ) when he
turned three years old. In order to ensure that children with
disabilities receive an appropriate education tailored to
their unique condition, the IDEA requires that when a school
district is afforded reason to suspect that a child has a
disability, it " conduct a full and individual initial
evaluation" that ensures the child is assessed for
" all areas of suspected disability," using a
variety of reliable and technically sound instruments. 20
U.S.C. § § 1414(a)(1), (b)(2)-(3). At the time of
Luke's initial evaluation, Paso Robles was aware that
Luke displayed signs of autistic behavior, and therefore,
autism was a suspected disability for which it was required
to assess him. It chose, however, not to formally assess him
for autism because a member of its staff opined, after an
informal, unscientific observation of the child, that Luke
merely had an expressive language delay, not a disorder on
the autism spectrum. We hold that, in so doing, Paso Robles
violated the procedural requirements of the IDEA and, as a
result, was unable to design an educational plan that
addressed Luke's unique needs. Accordingly, we hold that
Paso Robles denied Luke a free appropriate public education,
and remand for the determination of an appropriate remedy.
and Regulatory Background
Individuals with Disabilities Education Act (originally the
Education for All Handicapped Children Act), was designed to
reverse a history of educational neglect for disabled
children. Schaffer ex rel. Schaffer v. Weast, 546
U.S. 49, 52, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005) (citing
H.R. Rep. No. 94-332, p. 2 (1975)). At the time of its
passage, the need for institutional reform was pervasive:
millions of children with a multitude of disabilities were
entirely excluded from public schools, and others, while
present, could not benefit from the experience because of
undiagnosed--and therefore unaddressed--disabilities.
See 20 U.S.C. § 1400(c)(2).
the goal of remedying these systemic problems, the Act
conditions the receipt of federal funds on States'
maintenance of policies and procedures ensuring that a "
free appropriate public education" is available to all
children with disabilities between the ages of three and
twenty-one. Id. § 1412(a)(1)(A). A free
appropriate public education requires the provision of "
specially designed instruction, at no cost to the parents, to
meet the unique needs of a child with a disability,"
id. § 1401(9) & (29), as well as
transportation, developmental, corrective and other
supportive services required to ensure that the child
benefits from that special education, id. §
and Evaluation of Children with Disabilities
order to provide a free appropriate public education to all
children with disabilities States must, of course, first
identify those children and evaluate their disabling
conditions. Accordingly, the IDEA requires that every State
have procedures in place that are designed to identify
children who may need special education services.
Id. § 1412(a)(3)(A). Once identified, those
children must be evaluated and assessed for all suspected
disabilities so that the school district can begin the
process of determining what special education and related
services will address the child's individual needs.
See id. § § 1412(a)(7), 1414(a)-(c).
this evaluation is done early, thoroughly, and reliably is of
extreme importance to the education of children. Otherwise,
many disabilities will go undiagnosed, neglected, or
improperly treated in the classroom. See id. §
1400(c). For this reason, the IDEA requires that local school
districts must " conduct a full and
individual initial evaluation" of a child "
before the initial provision of special education
and related services" to that child. Id. §
1414(a)(1)(A) (emphasis added). Furthermore, the IDEA and
its accompanying regulations contain an extensive set of
procedural requirements that are designed to ensure that this
initial evaluation (as well as any subsequent reevaluations)
achieves a complete result that can be reliably used to
create an appropriate and individualized educational plan
tailored to the needs of the child.
the initial evaluation must be designed not only to determine
whether the child has a disability, but also " to gather
relevant functional, developmental, and academic information
about the child," that can be used to determine the
child's individual educational needs. 34 C.F.R. §
300.304(b)(1); 20 U.S.C. § 1414(a)(1)(C). The school
district must, therefore, " ensure that-- . . . the
child is assessed in all areas of suspected
disability." 20 U.S.C. § 1414(b)(3)(B) (emphasis
added). Anything less would not provide a complete picture of
the child's needs.
Second, the local school district must provide notice to the
child's parents that describes " any
evaluation procedures" that the district proposes to
conduct, as well as why it has made those decisions. 20
U.S.C. § 1414(b)(1) (emphasis added); 34 C.F.R. §
300.304(a). The statute further requires, inter
alia, that in conducting the evaluation, school
1. Use a " variety of assessment tools and
strategies" without relying on " any single measure
or assessment as the sole criterion for determining whether a
child is a child with a disability or determining an
appropriate educational program for the child," 20
U.S.C. § 1414(b)(2)(A) & (B);
2. Use " technically sound instruments that may assess
the relative contribution of cognitive and behavioral
factors, in addition to physical or developmental
factors," id. § 1414(b)(2)(C); and
3. Ensure that all assessments are conducted by trained and
knowledgeable personnel, in accordance with instructions
provided by the producer of the assessment, and for purposes
which the assessments or measures are valid and reliable,
id. § 1414(b)(3)(A).
completion of this full and individual initial evaluation,
the school district shall provide a copy of the evaluative
report to the child's parents. Id. §
1414(b)(4)(B). If the parents disagree with the school
district's evaluation of their child, they have a right
to " obtain an independent educational evaluation"
or " IEE" at public expense. 20 U.S.C. §
1415(b)(1); 34 C.F.R. § 300.502.
of an Individualized Education Program (" IEP"
results of the initial evaluation are critical to the next
step of the process: the creation of an individualized
education program or " IEP." The IEP is a written
document that states the child's present levels of
academic achievement and functional performance, creates
measurable annual goals for the child, describes the
child's progress toward meeting the annual goals, and
explains the services that will be provided to the child to
help him advance toward attaining his particular goals. 20
U.S.C. § 1414(d)(1)(A). It is created by a child's
" IEP Team" --which consists of the child's
parents, teachers, evaluators, and administrators, see
generally Winkelman ex rel. Winkelman v. Parma City
Sch. Dist., 550 U.S. 516, 524, 127 S.Ct. 1994, 167
L.Ed.2d 904 (2007)--after the team has considered the
child's strengths, the parents' concerns about the
child's education, and the results of the school
district's initial evaluation of the child, which (if
done appropriately) provides a complete picture of the
child's specific academic, developmental, and functional
needs. See 20 U.S.C. § 1414(d)(3)(A)(iii); 34
C.F.R. § 300.304(b)(1).
Although the IDEA gives discretion to school districts to
create and execute appropriate educational programs for
children with disabilities, the IDEA requires that parents be
afforded a significant and collaborative role in the
development of a child's IEP. Winkelman, 550
U.S. at 524. To that end, the IDEA contains a significant
number of procedural safeguards that are designed to ensure
that the child's parents have sufficient information to
understand and participate meaningfully in all aspects of
that discussion. See M.M. v. Lafayette Sch.
Dist., 767 F.3d 842, 851 (9th Cir. 2014). It requires,
among other things, that school districts provide copies of
the initial evaluative report to the parents, 20 U.S.C.
§ 1414(b)(4), thoroughly document all information used
to evaluate the educational needs of the child, 34 C.F.R.
§ 300.306(c)(1), and provide parents with an opportunity
to examine all of their child's records. 20 U.S.C. §
also requires that parents be given formal, written notice
whenever the school district intends to change or refuses to
change the identification, evaluation, or educational
placement of their child. Id. § 1415(b)(3).
That notice must not only describe the action proposed or
refused by the agency, but also explain why the agency
proposes or refuses to take the action, as well as the
records or assessments that the agency used as a basis for
its decision. 34 C.F.R. § 300.503(a) & (b).
any parent who is dissatisfied with the identification,
evaluation, or educational placement of the child must have
the opportunity to present a formal complaint. 20 U.S.C.
§ 1415(b)(6). Whenever a complaint is filed, the school
district must convene a meeting with the parents and members
of the IEP Team during which the parents may discuss the
complaint and give the school district the opportunity to
resolve it. Id. § 1415(f)(1)(B)(i). If the
school district does not resolve the complaint to the
satisfaction of the parents within thirty days, the parents
have the right to an impartial due process hearing before an
administrative law judge. Id. §
1415(f)(1)(B)(ii). Any party aggrieved by the findings and
decision rendered at the hearing may appeal to the state
educational agency or may b ring a civil action in federal
court. Id. § 1415(i)(2)(A).
an autistic child, was five years old when this case was
originally filed. He displayed symptoms of a developmental
disorder early in life, and in March 2009, when he was
twenty-seven months old, he began to receive speech,
language, and occupational therapy at the Tri-Counties
Regional Center (" Tri-Counties" ). Tri-Counties,
like all regional centers in California, is a nonprofit
private corporation that contracts with the Department of
Developmental Services to provide early intervention services
for at-risk infants and toddlers. California children
under the age of three qualify for services at regional
centers if they have a " developmental delay in one or
more of the following five areas: cognitive development;
physical and motor development, including vision and hearing;
communication development; social or emotional development;
or adaptive development" or if they suffer from "
conditions of known etiology or conditions with established
harmful developmental consequences." Cal. Gov't Code
the age of three, local school districts become responsible
for the education of children with disabilities. 20 U.S.C.
§ 1412. In California, however, children can also
continue to receive services at private regional centers if
they have " mental retardation, autism, epilepsy,
cerebral palsy, or a condition that is similar to mental
retardation or requires similar treatment." Cal. Welf. &
Inst. Code § 4512. At least at the time of the events in
this case, that meant that children with Autistic Disorder,
but not any other disorder on the spectrum, were eligible for
continued regional center services. In contrast,
under the IDEA and the California law that supplements that
Act, local school districts have at all times been required
to provide special education services to a much broader
category of children, ...