L. J., a minor, by and through his Guardian ad Litem; Nashira Hudson, an individual, Plaintiffs-Appellants,
Pittsburg Unified School District; Linda K. Rondeau, in her official capacity as Superintendent of the Pittsburg Unified School District, Defendants-Appellees.
and Submitted June 16, 2016 San Francisco, California
from the United States District Court for the Northern
District of California, D.C. No. 3:13-cv-03854-JSC Jacqueline
Scott Corley, Magistrate Judge, Presiding
Adams (argued), Adams Esq. APC, Oakland, California, for
Kimberly Smith (argued) and Stephanie S. Baril, Tomsky, Fagen
Friedman & Fulfrost, LLP, Los Angeles, California; and
Jan E. Tomsky, Fagen Friedman & Fulfrost, LLP, Oakland,
California, for Defendants-Appellees.
Before: Mary M. Schroeder, A. Wallace Tashima, and John B.
Owens, Circuit Judges.
with Disabilities Education Act
panel reversed the district court's summary judgment in
favor of the defendant school district in an action brought
by a student and his mother under the Individuals with
Disabilities Education Act.
panel held that the student was eligible for special
education services. The panel agreed with the district court
that the student had three disabling conditions. The panel
disagreed, however, with the district court's and the
state administrative law judge's ruling that the student
did not need special education services because of his
satisfactory performance in general education. Rather, the
student exhibited a need for services because his improved
performance was due to his receipt of special services,
including mental health counseling and assistance from a
one-on-one paraeducator, which were not services offered to
general education students. In addition, the district court
did not adequately take into account the student's
continued troubling behavior and academic issues. The panel
held that the student's psychiatric hospitalizations and
suicide attempts were relevant to his eligibility for
specialized instruction even though they occurred outside the
panel held that the school district also committed procedural
violations of the IDEA by failing to disclose school records
and failing to conduct a health assessment.
panel reversed the district court's decision and remanded
for it to order that the school district provide the remedy
of an individualized educational plan.
SCHROEDER, CIRCUIT JUDGE
an Individuals with Disabilities Education Act
("IDEA") case of an emotionally troubled young
child with suicidal tendencies beginning in the second grade,
and with attention deficit hyperactivity disorder
("ADHD") augmenting his disruptive behaviors.
Congress created the IDEA to bring disabled students into the
public education system by requiring states to adopt
procedures to develop individualized plans for such students.
Students with disabilities are entitled to special education
services to ensure that they receive a "free and
appropriate public education" ("FAPE").
Pittsburg Unified School District ("School
District") determined that L.J. was not entitled to
special education services because he was not disabled, and
its determination was upheld on administrative review.
L.J.'s mother filed this action in federal district court
to require the School District to provide L.J. with an
Individualized Education Plan ("IEP") to provide
specialized services to assist with what she contends are
district court reviewed the record and found that L.J. was
disabled under three categories defined by the IDEA. It
nevertheless concluded that an IEP for specialized services
was not necessary because of L.J.'s satisfactory
performance in general education classes. The court
discounted L.J.'s suicide attempts as not bearing on the
need for educational services because they took place outside
school records show, however, that beginning in the second
grade and continuing into the third and fourth grades, when
the parent invoked administrative remedies, the School
District had already been providing L.J. with special
services, including counseling, one-on-one assistance, and
instructional accommodations. These services resulted in
L.J.'s materially improved performance. The School
District consistently refused, however, to provide him with
an IEP that would ensure such services in the future as
required by the IDEA. The record also reflects that the
School District violated procedural protections of the IDEA
by failing to provide the parents with education records
bearing on L.J.'s disabilities and services that had been
provided. We therefore reverse and remand for consideration
of appropriate remedies.
case presents a bright child's disturbingly troubled
history in the primary grades of two through five. L.J. was
suspended from school multiple times for disruptive behavior
that included kicking and hitting his teachers, throwing
rocks, calling teachers and students names, and endangering
and physically injuring classmates. L.J. has attempted to
kill himself on at least three occasions and has manifested
suicidal ideations prompting the School District's mental
health providers to conduct at least one emergency suicide
evaluation. L.J. has been diagnosed with three serious
disorders, including Bipolar Disorder, Oppositional Defiant
Disorder ("ODD"), and ADHD. He has been prescribed
a cocktail of serious medications for these conditions.
years, L.J.'s mother has repeatedly requested, to no
avail, that the School District find L.J. eligible for
special education. The School District has provided many
services to L.J., but has never classified L.J. as eligible
for special education under the IDEA. Without such
eligibility, L.J. is not guaranteed the services his mother
believes that he needs, such as one-on-one educational
therapy, counseling services, and behavior intervention
services. Instead, the School District has transferred him
between at least three different schools.
history of L.J.'s difficulties began in second grade.
During this year, L.J. demonstrated inappropriate behaviors
at school, including anger, lack of self-control, and not
following rules. After being verbally disciplined by his
teacher for bullying other students, L.J. told her that he
wanted to die and that life was too hard. School staff called
L.J.'s mother, and mental health staff prepared an
emergency suicide evaluation. The School District referred
L.J. to Lincoln Child Center ("Lincoln"), the
School District's counseling center, where mental health
providers assessed him. L.J. was diagnosed with ADHD, ODD,
and Bipolar Disorder.
began his third grade year at the same school, but exhibited
negative behaviors which the teacher had difficulty
controlling. The School District held a student study team
("SST") meeting on September 7, 2011. The purpose
of an SST is to develop interventions for students having
trouble in school, either academically or behaviorally. In
many schools, an SST is the first step in addressing a
student's needs before initiating the IEP process.
L.J.'s SST meeting, the School District's behavior
specialist created a behavioral support plan
("BSP") to address his problematic behavior. Over
the course of the school year, the behavior specialist
revised the BSP multiple times, but L.J. continued to act
inappropriately. As a result of the failed BSP, the School
District proposed moving L.J. to a segregated trailer at a
different school, but with no special education services,
with six other African-American boys with extreme behavior
mother disputed the move, retained counsel, and entered
mediation. The parties settled by agreeing to place L.J.,
temporarily, in a different school, in a general education
class, conditioned on his having a one-to-one behavioral
aide. The School District also agreed to evaluate L.J. for
new school, a paraeducator was assigned to work with L.J.
one-on-one, and continued to work with him through his third
grade year. A paraeducator is a specially trained staff
member, assigned to work with special education students.
While L.J. progressed academically and behaviorally, he
continued to have issues. In April 2012, L.J. wrapped a
seatbelt around his neck, and saying he wanted to die, began
rolling around uncontrollably trying to rub his face on the
ground. L.J. was taken to the emergency room.
pursuant to the settlement agreement, Dr. Sherry Burke, a
school psychologist, conducted psychoeducational and
functional analysis assessments of L.J. to assist the IEP
team in determining if he qualified for special education
under the categories of other health impairment, or specific
learning disability. See 34 C.F.R. §§
300.8(c)(9), (10). Dr. Burke reviewed available school
records, conducted various interviews of L.J.'s teachers,
counselors, and family members, and administered a series of
tests. She concluded that L.J. did not meet the eligibility
criteria for special education.
29, 2012, L.J. again attempted to kill himself by sticking
his finger in a light socket and putting items down his
throat. He said that everyone hated him and he did not want
to live. He was then confined to a psychiatric hospital,
causing him to miss six school days.
next day, May 30, 2012, while L.J. was hospitalized, the IEP
team held a meeting to review L.J.'s assessment results
and to make a special education eligibility determination. An
IEP team is composed of School District teachers, the parent
and other experts familiar with the child. See 20
U.S.C. § 1414(d)(1)(B). Dr. Burke presented her findings
to the IEP team, including her recommendation that L.J. did