665 F.3d 1110
9th Cir.2011Background
- K.D. is a ten-year-old diagnosed with autism enrolled at Loveland (private school) after public-school attendance in kindergarten.
- DOE settled a 2007 due process with KD’s mother, agreeing to pay tuition for 2006-07 and to conduct subsequent evaluations; it required transition planning for a public-school placement.
- 2007 IEP proposed for 2007-08 and placed KD at Pearl Harbor Kai (PHK) with specified services; KD’s mother enrolled him at Loveland for 2007-08 and did not respond to several DOE communications.
- DOE held a second IEP meeting in July 2007 without KD’s mother or Loveland’s director; the DOE finalized the 2007-08 IEP and offered PHK placement.
- KD’s mother challenged the stay-put implications and tuition reimbursement; DOE maintained Loveland remained unilateral and that the 2007-08 reimbursement was untimely; district court affirmed the IEPs as FAPE and stay-put issue inapplicable forLoveland.
- The Ninth Circuit reviewed credibility of stay-put placement and timeliness under Hawaii’s statute for unilateral placements, applying de novo review with due weight to administrative findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Stay put placement determination | KD contends Loveland was the stay-put. | DOE argues settlement did not place KD at Loveland; stay-put not applicable. | Loveland not KD’s stay-put placement; no agency decision affirmatively placing KD there. |
| Timeliness of tuition-reimbursement claim | KD argues timely under 90-day rule for unilateral placement. | Placement was unilateral; 90-day limit applies and claim untimely. | Timeliness bar applies; reimbursement claim for 2007-08 is untimely. |
| Substantive adequacy of the 2007 IEP | IEP goals and services insufficient; failed 1:1 trainer. | IEP provided comprehensive services and goals reasonably calculated to benefit KD. | 2007 IEP reasonably calculated to provide educational benefits; not procedurally defective. |
| Procedural requirements—predetermination and parental participation | DOE predicated placement before IEP; CL did not participate. | DOE considered multiple options; DOE attempted to involve CL in 2007 and 2008 IEPs. | No predetermination; DOE satisfied participation requirements. |
Key Cases Cited
- Rowley v. Bd. of Educ. of the City of New York, 458 U.S. 176 (U.S. 1982) (FAPE requires reasonably calculated benefits to the child)
- Amanda J. v. Clark Cnty. Sch. Dist., 267 F.3d 877 (9th Cir. 2001) (state must comply with IDEA procedures; parental participation)
- N.D. v. Hawaii Dept. of Educ., 600 F.3d 1104 (9th Cir. 2010) (IDEA aims to avoid warehousing handicapped children in private settings)
- Burlington School Committee v. Mass. Dep’t of Educ., 471 U.S. 359 (U.S. 1985) (stay-put context; placement decisions must align with IEPs)
- J.L. v. Mercer Island Sch. Dist., 592 F.3d 938 (9th Cir. 2010) (clear error standard for district court factual findings)
- Union Sch. Dist. v. Smith, 15 F.3d 1519 (9th Cir. 1994) (deference to state hearing officer findings when thorough)
- K.D. v. Dep’t of Educ. (Zvi D.), 694 F.2d 904 (2d Cir. 1982) (tuition reimbursement not stay-put unless public agency placed student)
- Clovis Unified Sch. Dist. v. California Office of Admin. Hearings, 903 F.2d 635 (9th Cir. 1990) (placement decisions require participation and not merely procedural)
- D.C. v. Dep’t of Educ., 550 F. Supp. 2d 1238 (D. Haw. 2008) (settlement may or may not constitute current placement; not controlling here)
- Shapiro ex rel. Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072 (9th Cir. 2003) (requires documentation of attempts to involve parents in IEP scheduling)