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L. J. v. Pittsburg Unified School District

United States Court of Appeals, Ninth Circuit

September 1, 2016

L. J., a minor, by and through his Guardian ad Litem; Nashira Hudson, an individual, Plaintiffs-Appellants,
v.
Pittsburg Unified School District; Linda K. Rondeau, in her official capacity as Superintendent of the Pittsburg Unified School District, Defendants-Appellees.

          Argued and Submitted June 16, 2016 San Francisco, California

         Appeal 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

          Jean Adams (argued), Adams Esq. APC, Oakland, California, for Plaintiffs-Appellants.

          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.

         SUMMARY[*]

         Individuals with Disabilities Education Act

         The 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.

         The 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 school environment.

         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.

          The 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.

          OPINION

          SCHROEDER, CIRCUIT JUDGE

         INTRODUCTION

         This is 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").

         The 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 serious disabilities.

         The 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 of school.

         The 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.

         BACKGROUND

         This 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.

         For 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.

         The 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.

         L.J. 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.

         After 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 problems.

         L.J.'s 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 special education.

         At the 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.

         Also, 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.

         On May 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.

         The 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. ยง 1414(d)(1)(B). Dr. Burke presented her findings to the IEP team, including her recommendation that L.J. did ...


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