United States District Court, D. Arizona
HONORABLE SUSAN M. BRNOVICH, UNITED STATES DISTRICT JUDGE
an appeal for judicial review of a final administrative
decision of the Arizona Office of Administrative Hearings
(“OAH”) under the Individual with Disabilities
Education Act, 20 U.S.C. § 1400 et seq.
(“IDEA”). (Doc. 1 ¶ 1,
“Complaint”). L.B. (“Parent”) brings
this case on behalf of her child, J.B. She alleges that J.B.
is a student with behavior disabilities and Kyrene Elementary
District No. 28 (the “District”) failed to
provide him with a Free Appropriate Public Education
(“FAPE”) as required by IDEA. Parent filed an
Opening Memorandum. (Doc. 34, “Op.”). The
District filed an Answering Brief (Doc. 35,
“Ans.”), to which Parent replied (Doc. 36,
“Reply”). The Court previously granted
Parent's motion to consider additional evidence. (Doc.
was a student in the District. Parent alleges he has complex
disabilities including reactive attachment disorder, fetal
alcohol syndrome, Klinefelter's syndrome, intellectual
disability, attention deficit hyperactivity disorder,
dyslexia, and dysgraphia. (Complaint ¶ 6). She alleges
the District did not provide sufficient services to J.B.,
thus denying him FAPE. An Administrative Law Judge
(“ALJ”) at the OAH held a hearing over nine days
between November 4, 2015, and January 11, 2016. On August 22,
2017, the ALJ issued a decision (IR 325, “ALJ
Decision”) in favor of the District.
the review of this case is fact-intensive and Parent is
appealing multiple issues from the OAH decision, the Court
will discuss the relevant facts of the case in conjunction
with each issue. The opening brief lists the following
1. The District denied J.B. FAPE when it refused to complete
evaluations or offer FAPE on December 19, 2013 and after
until J.B. re-enrolled in the District;
2. The District's October 2, 2013 decision to not change
J.B.'s Individual Education Program (“IEP”)
denied him FAPE;
3. The District denied J.B. FAPE by failing to conduct
necessary evaluations; and
4. The District denied J.B. FAPE by failing to provide Parent
with all of J.B.'s education records.
also alleges she should be reimbursed for J.B.'s private
educational placements. The Court will take each issue in
IDEA, an aggrieved party may bring a civil action in federal
district court after receiving the final decision of an ALJ.
20 U.S.C. § 1415(i)(2)(A). The moving party bears the
burden of proving the ALJ's decision was not met by a
preponderance of the evidence. Clyde K. v. Puyallup Sch.
Dist. No. 3, 35 F.3d 1396, 1399 (9th Cir. 1994). The
district court “shall receive the records of the
administrative proceedings, ” “shall hear
additional evidence at the request of a party, ” and
“basing its decision on the preponderance of the
evidence, shall grant such relief as the court determines is
appropriate.” 20 U.S.C. § 1415(i)(2)(C).
contends the Court must review the ALJ's findings,
conclusions, and decision de novo. (Op. at 2). In a
judicial proceeding under IDEA, a reviewing court is required
to conduct a modified de novo review. M.L. v.
Fed. Way Sch. Dist., 341 F.3d 1052, 1061 (9th Cir.
2003). The Court reviews de novo the question
whether a school district's proposed IEP provided a FAPE
under IDEA. Timothy O. v. Paso Robles Unified Sch.
Dist., No. 14-55800, 2016 WL 2957215, at *9 (9th Cir.
May 23, 2016). Mixed questions of law and fact are reviewed
de novo, unless the question is primarily factual.
Gregory K. v. Longview Sch. Dist., 811 F.2d 1307,
1310 (9th Cir. 1987). Courts must not “substitute their
own notions of sound educational policy for those of the
school authorities which they review.” Bd. of Educ.
of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S.
176, 206 (1982). However, it is a matter of district court
discretion to decide the degree of deference to give to the
ALJ's determination. Ojai Unified Sch. Dist. v.
Jackson, 4 F.3d 1467, 1474 (9th Cir. 1993). In reviewing
the administrative record as a whole, courts may accept the
conclusions of the ALJ that are supported by the record and
reject those that are not. Fed. Way, 341 F.3d at
does not require school districts to provide the
“best” education. J.W. v. Fresno Unified Sch.
Dist., 626 F.3d 431, 439 (9th Cir. 2010). It merely sets
a “basic floor of opportunity.” Id. The
District “must provide Student a FAPE that is
‘appropriately designed and implemented so as to
convey' Student with a ‘meaningful
benefit.'” Id. at 432-33 (quoting
Adams v. State of Or., 195 F.3d 1141, 1149 (9th Cir.
1999)). IDEA also “does not require a district to
comply with every parent request.” K.S. v. Fremont
Unified Sch. Dist., 545 F.Supp.2d 995, 1009 (N.D. Cal.
2008). The District must, however, “seriously consider
the parents' concerns, and when there is no agreement,
provide the parent with the opportunity to challenge the IEP
at a due process hearing.” Id.
Decision is a 130-page order setting forth the witnesses,
evidence, and issues at the hearing along with detailed
findings of fact. The ALJ states she considered the entire
record, including all the testimony and every exhibit. (ALJ
Decision at 10 n.28). Because the Court finds the ALJ was
thorough and careful in her findings, the Court concludes
they are entitled to significant weight. JG v. Douglas
Cnty. Sch. Dist., 552 F.3d 786, 793 (9th Cir. 2008). The
Court will consider the issues in the order that Parent
Did the District deny J.B. FAPE by not completing
evaluations or offering FAPE after December 19, 2013, unless
J.B. re-enrolled in the District?
ruled that the District did not have IDEA obligations after
J.B.'s October 14, 2013 withdrawal from the District and
that Parent failed to plead the District was required
re-evaluate and re-offer FAPE after December 19, 2013. (ALJ
Decision at 103- 06, 124-25). Parent argues this was error,
as the Local Education Agency (“LEA”) where a
child resides is responsible for providing FAPE to the child
and she properly pleaded this issue below. Alternatively, if
the Court concludes the claim was not properly raised below,
Parent argues the Court should still consider the claim
because it is an issue of law and the record is fully
September 19, 2013, Parent provided the District 10-day
notice of her intent to enroll J.B. in a private placement.
(IR 277). In a prior written notice (“PWN”) dated
October 4, 2013, the District offered to pay for Parent's
desired private placement for the second quarter of the
school year with the plan to transition J.B. back to the
District by January 6, 2014. (IR 287). “[J.B.] was
withdrawn from [the District] and parentally placed at
[private placement] on October 15, 2013.” (IR 291).
J.B. was in this private placement, Parent and the District
continued discussions to transition J.B. back to a District
school. Parent requested speech and occupational therapy
services on November 4, 2013, which the District made
available at one of its elementary schools. (IR 291). On
December 3, 2013, the District met with Parent to review a
speech language evaluation. (IR 147). There were also many
emails between various officials at the District and Parent.
(IR 207). District personnel even visited J.B. at the private
placement, which Parent argued “traumatized” J.B.
(IR 85 at 26). On December 19, 2013, the District held a
Multidisciplinary Evaluation Team (“MET”) meeting
attended by Parent, officials from the District, and
officials from the private placement. (IR 303). After that
meeting, the District issued a final PWN.
District's final PWN on December 19, 2013, noted that
J.B. was no longer enrolled in the District and Parent had
rejected a written agreement meant to transition J.B. from a
private parental placement back into a District school. (IR
303 at 15). Instead of accepting the District's plan to
transition J.B. from a private placement back to a District
school, Parent offered a different plan, which the District
refused. (IR 303 at 15; see IR 241). The PWN further
noted the District's attempts to evaluate J.B. at the
private placement were rejected by Parent because she
believed it would be too traumatic for J.B. (IR 303). Parent
proposed other methods of evaluation that the District
thought would be unsuccessful. The PWN concluded with,
“As [J.B.] is not currently a student enrolled in
Kyrene School District, no further [Multidisciplinary
Evaluation Team/Individual Education Plan] meetings will take
place. Should [L.B.] choose to enroll [J.B.] as a student in
Kyrene, we are ready[, ] willing[, ] and able to implement
his [Individual Education Plan] as written and proceed with
the evaluation process.” (Id.).
ALJ's Decision substantiated the District's
characterization of failed attempts to evaluate J.B. She
noted, “Parent was ‘adamant' that she did not
want any observations by [the District] at [the private
placement] and she specified, in writing, that she would not
allow any testing at that time.” (ALJ Decision at 107;
see also ALJ Decision at 98 n.290). In the findings
of fact, the ALJ found no indication Parent agreed to
evaluations after the December 19 PWN. (ALJ Decision at 98
n.290). The record also contains multiple instances of the
District attempting to accommodate J.B. after his withdrawal.
(See IR 241, 291, 299, 303). Parent alleges the
ALJ's conclusions are contrary to the record, and she was
willing to allow evaluations, but at a slower pace than the
District wanted and under different circumstances, such as by
video, in an effort to prevent J.B. from being traumatized by
the presence of District personnel. (IR 241).
Whether Parent ...