*1 District, Compton Unified to have sexual the intent persuade Plaintiff-Appellant, may be diffi- The distinction intercourse. case. it is essential grasp but
cult v. only by proving succeeds prosecution Allen, Addison; Gloria Starvenia jury If the is able attempt. intent to Defendants-Appellees. prosecution’s the the essence grasp 07-55751, 07-56013. Nos. between the case, distinguish can jury the Appeals, Court of United States prose- proved intent to be ultimate Ninth Circuit. expert would the intent cution and testify to. 23, 2008. and Submitted Oct. Argued 22, 2010. Filed March per our curiam not believe that
I do opinion Judge Posner’s Goetzke Judge to be read conflict. need
Gladish and favor- length at quotes Goetzke
Posner that Rule agree
ably. opinions Both
704(b) in- testimony on the expert blocks Judge crime. charged to commit
tent expert out how the point on to goes
Posner it that makes testify to a circumstance
may did commit that the defendant
unlikely
charged crime. case, jury could have believed
In our that Hofus expert
or not believed intercourse. actual sexual
fantasized about to have vital to the defense
It was jury. To testimony before
expert’s right present the defense
deny of the accused deny right
was to preju- denial was a defense. The and violative to the defense
dicial
Sixth Amendment. SCHOOL
COMPTON UNIFIED
DISTRICT, Plaintiff-
Appellant, Allen, ADDISON; Gloria
Starvenia
Defendants-Appellees.
Barrett K. Cravens, Green and Daniel J. Mendelson, CA, Littler Angeles, Los for appellant. George Crook, D. Newman Aaronson Vanaman, Oaks, CA, Sherman for ap- pellee.
Before: HARRY PREGERSON and N. SMITH, RANDY Judges, Circuit COLLINS,* RANER C. Judge. District PREGERSON, Judge: Circuit (the Compton Unified School District District”) appeals “School the district granting court’s decision judgment on the pleadings in favor of Starvenia Addison (“Addison”), a student in the School Dis trict. The School District argues that Ad dison cognizable does not have a claim against the School District for its failure to jurisdic her disabilities. We have tion under 28 U.S.C. 1291. We review law, matters of jurisdictional such as the here, novo, issue raised de see Johnson v. Special Educ. Hearing Office, 287 F.3d 1176, 1179 Cir.2002), and affirm. Background I.
Addison very poor received grades and percentile scored below the first on stan- * Collins, The Honorable Raner C. ting by designation. United States Arizona, Judge District for District of sit- Addison, for judge trative law found ninth-grade year during her tests dardized appeal affirmed. This the district court attrib- school counselor in 2002-2003. timely followed. to com- poor performance uted *3 The year” difficulties. “transitional mon Analysis II. for a atypical consider did not counselor perform as Addison
ninth-grader such
A.
IDEA Claims
fourth-grade level.
at a
IDEA
to ensure that children
The
seeks
year, Addi-
tenth-grade
ap-
fall
her
to a free
In the
with disabilities have access
subject.
20
education.
U.S.C.
every
propriate
academic
son failed
“provides
federal
§ 1400. The
to be a
grades
these
considered
counselor
agencies
and local
funds to assist state
reported
Teachers
“major
flag.”
red
disabilities, but
educating children with
furniture”
“like a stick of
was
Addison
funding
compliance
such
on
with
conditions
class,
“gibberish
work was
and that her
procedures.” Ojai
goals
certain
Uni-
also re-
Teachers
incomprehensible.”
Jackson,
1467,
v.
4 F.3d
Sch. Dist.
fied
refused to
Addison sometimes
ported that
(9th Cir.1993).
of these condi-
1469
One
classroom,
crayons
colored with
enter
pro-
tions is
states enact
class,
desk,
with dolls
played
at her
ensuring that “all children with
cedures
in class.
urinated on herself
special
... who are in need of
disabilities
reluctant to have
mother was
Addison’s
identified, located,
services[
education
J
at,” and School District
the child “looked
1412(a)(3)(A).
20
and evaluated.”
Instead,
“push.”
not to
officials decided
obligation is also known as the “child
This
referred Addison to a
District
School
requirement.
find”
counselor. The
third-party mental-health
requires
imple-
The IDEA also
states to
recommended
third-party counselor
procedural safeguards
a number of
ment
for
assess Addison
the School District
that disabled children receive an
to ensure
the recom-
Despite
learning disabilities.
Among these safe-
appropriate education.
mendation,
not re-
District did
opportunity
any party
for
guards is
assessment,
an educational
fer Addison for
complaint
respect
“with
Addison to eleventh
promoted
and instead
evalu-
relating
matter
grade.
ation,
of the
or educational
2004,
mother
September
In
1415(b)(6)(A).
34
child.” 20 U.S.C.
explic-
a letter to the School District
wrote
implements
this due
300.507
C.F.R.
assessment
itly requesting
educational
complaint requirement.
cess
Program
Education
and Individualized
another, separate procedural safe-
As
(“IEP”)
took
meeting. The assessment
the IDEA
that local edu-
guard,
The IEP
December
2004.
place on
agencies provide written notice
cational
eligible
that Addison was
determined
team
parents
whenever
a child’s
January
services on
special
for
education
“re-
change”
to initiate or
or
“proposes
26, 2005.
change
to initiate or
the identifica-
fuses
tion, evaluation,
an administrative claim
brought
Addison
1415(b)(3).
child....”
20 U.S.C.
Ed-
Individuals with Disabilities
under the
300.503(a)
implements
34 C.F.R.
(“IDEA”),
1400-
Act
ucation
requirements.
notice
compensatory educational
seeking
IDEA,
California,
failure to
for the School District’s
with the
compliance
services
agencies
ap-
a free
local educational
provide
her needs and
mandates
systematically seek out
actively and
The adminis-
“shall
public education.
propriate
exceptional
produce
all
needs.” would
individuals
absurd results. See United
“All
Cal. Educ.Code
children
Morton,
States
identified,
...
with disabilities
shall be
lo
(1984);
S.Ct.
change
identification,
regarding a student’s
(2009).
S.Ct.
We read statutes as a date.1 Addison’s claim cognizable is under avoid interpretations which the IDEA.2 argues The School District also provisions that notice render their surplusage.” mere requirements 1415(b)(7)(A) Cos., in 20 U.S.C. Vantage American Inc. Table Mountain strictly scope Rancheria, limit of 20 292 F.3d Cir. 1415(b)(6). Strict adherence 2002) (internal to the lan- omitted). quotation We there (b)(7)(A), guage however, of Section would accept fore do sug not the School District’s 1415(b)(6) conflict with 20 U.S.C. gestion (b)(7)(A) that we should read Section (granting jurisdiction matter”), "any over but strictly scope control the of IDEA'S notice 1415(b)(3) also with 20 U.S.C. (establishing jurisdictional provisions. requirements notice agency propos- where an act). (b)(7)(A)(ii)(III) es or refuses to Section 2. Even if the School District were correct in description "a of the nature of the may only its contention that IDEA claims problem relating of the child brought to such proposals over or affirmative refusals posed change.” initiation or Nowhere change, does to initiate a Addison's claim would (b)(7)(A) act, Section refer to a cognizable. still be The School District does refusal despite explicit language inclusion of such not contest that a hearing due (b)(3). in Section "It is a well-established available when an education "refuses principle legis- change[ construction that to initiate uation, ] eval- lative child, enactments should not be construed to contends, III. Conclusion based District also
The School Bd. Century School Dist. Arlington on based on a local We conclude claims 291, 126 S.Ct. U.S. Murphy, 548 Ed. v. to meet agency’s educational failure (2006), that it did L.Ed.2d 526 requirement cognizable un- “child find” availability of “clear notice” not have here, and that the School der find” hearing in “child an administrative had clear notice of this fact. Ac- District merit, no as the has argument This cases. grant- the district court’s orders cordingly, complaints “with re- clearly allows pleadings and award- ing judgment on relating to the identi- matter spect are AFFIRMED. ing attorneys’ fees evaluation, place- educational fication, child.” 20 U.S.C. ment SMITH, Judge, dissenting: N.R. Circuit added). 1415(b)(6)(A) (emphasis judge finds and district Congress clearly intended to found Attorneys’Fees B. of action when it drafted 20 create cause address, reject, lastly We I § 1415 of the IDEA. cannot argument District’s the School The clear of the statute agree. *5 attorneys’ fees award of court’s district Further, if wrong. them even their makes may, court The district be vacated. should could be harmonized with the stat- position discretion, attorneys’ fees to award in its ute, one cannot find that Addison is enti- v. Los An party. Aguirre prevailing tled to relief on this record. Dist., 1114, 461 F.3d geles Unified Cir.2006). (9th In we held Aguirre, 1115 panel our an This case comes before as obtained” is “degree of success judgment pleadings from a on the appeal determining factor most critical Plaintiff, We review de CUSD. in an IDEA are warranted fees whether 12(c) plead- on the judgment novo a Rule Eck Citing Hensley v. Id. at 1118. case. Pickard, 922, F.3d ings. Fleming v. 581 erhart, 76 103 S.Ct. 461 U.S. (9th Cir.2009). judgment A on the 925 (1983), stated that 40 we also L.Ed.2d if, proper taking all of CUSD’s pleadings is or formula for precise rule there is “no true, pleadings as Addi- allegations in its determinations,” that a making these judgment as a matter of son is entitled “full may award fees even court district Firebaugh law. Water Dist. Westlands every prevail not on party where a did (9th Cir.1993). Canal, 667, 670 10 F.3d (citations at 1121 omit Id. contention.” court, to the district CUSD appeal On ted). Here, court did though the district had au- only challenged whether the ALJ success,” it “degree of did not use the term hearing, thority process to conduct a due standard. applicable as the Aguirre cite whether in which the ALJ could determine degree Considering Addison’s substantial violated the IDEA’S child-find CUSD and district administrative of success that, argued under vision. CUSD court did the district proceedings, court law, hearing process IDEA and state a due awarding attor discretion in not abuse its may held where the school district neys’ fees. unwillingness New Colle- appropriate to do...." Webster's provision edu- free or the (1973 ed.). Dictionary 20 U.S.C. The School giate child.” 972 cation Instead, 1415(b)(3)(B). the School District face numer- inaction in the District’s wilful as deliberate indifference to cast its seeks flags” more than sufficient to ous "red is We not something a “refusal.” do other than unwillingness and refusal demonstrate characteriza- agree School District’s with the evaluate Addison. express refuse is "to show tion. To 1186 act, acts or refuses to not
purposefully IDEA].” In complained-of California, when the conduct is best is found in Part 30 of negligence. described as the California Education Code. As set out Code, in the California Education the state “In of clear evidence of the absence turn, has, in given local education areas intent, may usurp we not congressional the task of establishing power unilaterally creating a legislative to govern implementation Digimarc action.” In re Corp. cause of IDEA in its area. Cal. Litig., F.3d 1230-31 Derivative 56301(d)(1). Cir.2008) Therefore, (citing Touche to determine Ross & Co. v. parents may whether Redington, bring 99 S.Ct. an IDEA due (1979) (“The L.Ed.2d 82 ultimate process hearing, one must consider all intent, question congressional one of federal, plans: state, three and local. Ad- whether this Court thinks that it one of brought dison her claim for due on improve upon can scheme ground that CUSD violated the law.”)). Thus, enacted into IDEA’S Child-find provision. The district establishing a private the burden cause 1415(b)(6) court found accompa- and its upon plaintiff; of action falls a burden nying regulation, 300.507, 34 C.F.R. es- not carried. Addison has tablish a private cause of action for viola- tions of the provision. I. The Existence of a Private Cause of plain Action that states establish proce- and maintain court, parents In may only federal chal- allowing parties dures a com- *6 lenge carry school district’s failure to out plaint to regarding as matters identifica- obligations its IDEA provi- based on the tion of children.1 The provision, IDEA. It sions of the is not a common law § 1412(a)(3)(A), U.S.C. requires that action, an action and cannot be brought the state has “in policies effect proce- and pursuant a school district to 42 dures to ensure that the State ... meets § 1983. While the IDEA presents following the condition[ ]:” children, educating standards for private a All children with residing disabilities in right of action must exist in order for a State, ... regardless the severity court grant to relief for a viola- disabilities, of their and who are need Thus, tion. it is not enough that Addison special services, of education and related violation, shows a she must also identified, located, are and evaluated establish that the statute private creates a a practical and developed method is and cause of action. implemented to determine which chil- Looking first Congress dren with currently disabilities are re- left the objectives details of how the ceiving special needed education and re- states, are to be achieved to by the lated services. requiring those states who wish to obtain The state must policies funding, and provides “submit[] that procedures to Secretary assurances to the the satisfaction of that the the Secre- State policies tary. § has effect and at procedures to Id. Section thus ensure that the State meets requires [the conditions that the state have However, requires When a statute actually governs that the state when the statute action, procedure place, very or school district have a the course of I refer to it as action, governing a creating certain course of I refer to a "substantive standard” or "sub- creating "procedural requirement.” it as requirement.” stantive placement cational of a child of to the satisfaction of place, procedures (at time) in Secretary. age the relevant its section on the safeguards. Section 1415 re- procedural the 1415, §In quires that states establish and maintain a establish and agency “shall education governmental the procedure requiring in accordance with procedures maintain parents prior no- agency provide that children with to ensure this section tice whenever it “refuses to initiate or are parents guaran- their disabilities and identification, evaluation, or respect change, with to the procedural safeguards teed appropriate of free of the child.” 20 provision the educational 1415(b)(3)(B). at agencies.” Id. by such education Such notice must added). 1415(a) Looking at (emphases include: 1415, dis- of a school plain language the (1) the action ... re- description “a when it fol- procedure trict “maintains” a 1415(c)(1)(A); agency,” the fused The list procedure. lows and enforces (2) explanation why agency “an that must be maintained procedures action,” refuses to take op- procedure providing “[a]n includes 1415(c)(1)(B); present[ complaintfs] ... portunity ] (3) description “a of each evaluation relating matter respect assessment, record, cedure, report evaluation, ... used as basis for the ” at child.... Id. action,” refused Id.] 1415(b)(6)(A). By requiring (4) description options “a of other con- maintain develop states by the IEP Team sidered rea- initiating process hearing, a due governing why options rejected,” sons those were the courts that we are Congress instructed 1415(c)(1)(E); give deference to the states. (5) “a description of factors to initiate due parents allows California refusal,” ... agency’s relevant (as hearing procedures prescribed 1415(c)(1)(F). Part Division Title by Chapter regulations accompanying Code) under of the California Education *7 help IDEA court also do little to inter- circumstances where the school district agency give “refusal.” An must writ- pret identification, has refused to initiate a a parent ten notice to the of child with assessment, of a or education 56501(a)(2). disability “a reasonable time before the The child. Cal. Educ.Code “[rjefuses agency” to initiate or inaction, public in that CUSD’s holds identification, evaluation, facts, change the or ed- troubling face amounts major- placement of the child.” 34 to a “refusal” under the IDEA. The ucational 300.503(a)(2). authority interpretation regulation for its ity cites no The C.F.R. term “refusal.” required 1415 as to the contents mimics notice, in it requires of that Defining “Refusal” A. include all five of the statements notice 300.503(b)(1), listed above. 34 C.F.R. In The (1)Refusal Is Not Defined (b)(7). (b)(2), (b)(3), (b)(6), CFRs, The Edu- The California cation Code repeats The California Education Code requirements found the IDEA and the term The IDEA does not define adding any accompanying CFRs without However, it does discuss the “refusal.” for “refusal.” more detailed definition refusal consequences of a school district’s 1415(b)(3) evaluation, identification, and 34 C.F.R. to initiate edu- Pursuant 1188 300.503, public require California not read the IDEA to an agency prior
agency provide parents with
written
give prior written notice that
it will be
assessment,
initial
a child’s
upon
notice
negligent: describing the decision concern-
time
its
and notice
reasonable
before
ing
negligent,
which it will be
the reasons
change
to initiate or
refusal
it
negligent,
has decided to be
and the
assessment,
of a
deciding
factors
considered in
neg-
56500.4(a).
child. Cal. Educ.Code
The
ligent.
It
prior
would make the
agency
“provide description
must also
(unless
requirement
notice
absurd
CUSD’s
any
agency
assessment
actions are described
something
as
other
The
proposes to conduct.” Id.
contents of
here,
negligence;
than
party
neither
requirement
a notice
are identical to the
claims that CUSD acted
purposefully
requirements
content
found
the CFR.
Addison).
failure to evaluate
56500.4(b).
See id. at
The term
obviously
“refusal”
includes
(2) Statutory Interpretation
purposeful agency
in response
action
to a
(1)
conflict over
whether
to evaluate a
CFRs,
and the Califor-
(2)
student, or
how to
deal
an evaluat-
nia Education Code all presuppose that
ed
plain
student. The
language of the
there has
purposeful
been
action with re-
statute makes that a
student,
interpre-
reasonable
gard
specific
to a
before
“re-
tation. Plenty
fusal”
of IDEA
statutory
occurred. “When the
‘lan-
cases come before
guage
plain,
the sole function of the
the courts as the
a parent
result of
and the
disposition
courts—-at least where
required
local
agency disagreeing
education
over
by the text is not absurd —is to enforce it
proper
classification of a child or the
”
according
Arlington
to its terms.’
Cent. proper appropriate education. Such cases
Sch. Dist.
Murphy,
Bd.
Educ. v.
neatly
fit
into the
scheme. As
291, 296-97,
U.S.
126 S.Ct.
above,
discussed
once an issue has come to
(2006) (quoting
L.Ed.2d 526
Un-
Hartford
contention,
a point of
require-
the content
derwriters Ins. Co. v. Union Planters
(and
ments for
prior
written notice
Bank, N.A.,
120 S.Ct.
due
hearing complaint, for that
(2000)).
L.Ed.2d
Interpreting refus- matter) make sense.
al to
include
school district’s negligent
However, applying the IDEA in cases
failure to
students with disabilities
where there is no
point
dispute between
timely
in a
manner —as the majority ar-
a parent
and the
(even
gues here^—leads to an absurd result
absurd,
renders the
but
us)
distressing
under the
facts before
appears
go
also
purpose
leaves a
questions
host of
in its wake.
*8
the IDEA. The core of the IDEA “is the
The IDEA states implicitly, and the
cooperative process that it establishes be-
CFR and the California Education Code
parents
tween
and schools.”
ex
Schaffer
explicitly,
state
that written notice is to be
Weast,
49, 53,
rel.
Schaffer
given
parent prior
to a
to the refusal. 20
(2005).
S.Ct.
monitor above, § 1412 As mentioned outlines the of our solely on to the shoulders ment for districts. requirement school Child-find system. school only requires § 1412 that Unlike procedures cause of states establish certain having private not a Finally, Therefore, Secretary. that there is no satisfaction of not mean action does IDEA, can violate 1415 if it fails to while state for violations public recourse procedure or to maintain CFRs, Education either establish or the California procedure, that a state can violate every legisla- level of this As seen at Code. having procedure § 1412 not at all. tion, upon compli- conditioned funding is that Congress §§ Given that included addi- ance. Cal. Educ.Code Furthermore, requirement only three compliance is tional substantive such 56845. later, appears Congress that did merely through investiga- sections not ensured requirement in not intend to create such a in discussed complaints tion —as (Again, 1412. this does not leave the monitoring. also in Cal. § 56500.2—but redress; perform without failure to under the IDEA can and does lead to “refuse” un- that CUSD did not Finding funding. Ojai reduced See Sch. Unified the ALJ did statute méans der the Jackson, Dist. v. F.3d authority to conduct a due not have Cir.1993) funding condi- (explaining did not because hearing, cess compliance goals tioned “on with certain a method right of action as private create a A state does not com- procedures.”). actions for the school district’s of recourse IDEA, in ply regard with the Child- here. provision, provide proce- if it does not find Finding Secretary.) satisfy dures II. Child-Find Violation Therefore, in that there order show to demonstrate Even if Addison were Child-find was some sort substantive cause of action existed under private that a violation, that viola- Addison must panel is the record before this Regulations of Federal that we tion the Code sufficiently developed so that were local case. On a state judgment render should to this statute. The adopted pursuant judgment pleadings, for on the motion (2006) (cur- § 300.125 whether ALJ cited 34 C.F.R. properly determine panel cannot 300.111) rently codified at 34 C.F.R. requirement, violated CUSD prevailed on the finding in this her that Addison local is not because CUSD of action. Howev- pleadings her cause panel must review record. This er, only requires 300.125 the IDEA and 34 C.F.R. plan, local because CUSD *9 must have effect State accompanying procedural— “[t]he CFRs are (i) All chil- to ensure that procedures how best and the states to determine allowing residing in the State with disabilities requirement, so dren to achieve the Child-find identified, located, evaluated.” ... are and place. are in long procedures as certain 1412; it is language level, Education This mirrors the California At the state never requirement. Plaintiff develop procedural school districts to Code allows the policies, procedures, programs contended that California failed to have and that laws, procedures place. these ALJ also are consistent with regulations, state Education Code sections policies governing following: cited California and ... Compliance (3) setting (11) forth obli- 56300 and 56301 as Child-find and referral.... gations (12)(A) that were violated CUSD this descrip rances.... A assu Again, case. because Addison did not al- governance tion of the and administration violations, lege any procedural panel (15) plan.... Participation in state statutory that sections must find assessments, and districtwide ... and re provide a substantive standard that has ports relating to assessments.” Cal. Educ. been violated. Code appear
At it would glance, first precedent, Given this we cannot hold may California Education Code establish a there has been violation of the against substantive standard which we requirement without, Child-find very at might compare CUSD’s actions. The Cali- least, reviewing the plan. CUSD local begin fornia Education does an Code Further, if reviewing the local plan is not a imperative: “agency actively shall and prerequisite, plans local purpose. serve no systematically out all seek individuals with recognized The IDEA has been as a model exceptional needs.” Cal. Educ.Code federalism,” “cooperative Schaffer, see However, § 56300. the following two sec- at system U.S. 126 S.Ct. tions of the Education Code continue on to where set out the goals and detail the manner in that imperative which cedures, but allows states the freedom to to be achieved. It is must be achieved goals decide how procedures those through the creation plans. local Cal. implemented were to day-to-day on a 56302. By finding basis. that the school district has violated the provision, with-
Sections 56301 clarify and 56302 out even reviewing procedures, the CUSD plans govern the local what the Child-find ignores complex process will look like. “Each special edu- outlined here. cation local plan area shall establish writ-
ten policies ... for a con- ” III. Conclusion system.... tinuous child-find Cal. Educ. 56301(d)(1). sympathetic I am plight
Code proce- “Identification disappointed this case and systematic dures shall that more was include methods of not done to aid her utilizing pupils teachers, referrals of from while she was a stu- parents, However, dent in the school agencies, appropriate professional district. I persons, private and from cannot find a other members of the cause of action within public.” structure, Cal. Educ.Code the IDEA I can- harmonize the of the statute apparent It seems from sections 56301 private with a negli- cause of action for purpose impera- Further, gence. even if I were find tive was to set plans the local as a stan- such things, I do not believe that the rec- dard which a school district’s ac- ord sufficiently developed for a final compared. tions to be Section 56205 judgment juncture. at this For these rea- supports reading by such a explaining the sons, I must dissent. manner in which California compli- assures ance with IDEA requirements: “Each spe-
cial education local area submitting
local plan Superintendent under this
part shall ... ensure that it has in effect