*1 minor; C.D., parent; S.L., M.L., a his parent, Petitioners-
Appellants,
v. DISTRICT;
FEDERAL WAY SCHOOL
Washington Superintendent of Public
Instruction, Respondents-Appellees.
No. 02-35547. Appeals,
United States Court
Ninth Circuit.
Argued Aug. and Submitted 5, 2004.
Filed Nov.
Amended Jan. *2 Lobsenz, Carney Badley E. Spell- James IEP team precludes us from considering P.S., Seattle, WA, man, petitioners- for the whether the IEP developed without the appellants. inclusion of at least one reasonably teacher was calculated to en- Hirst,
Christopher L. Preston Gates & *3 able M.L. to receive free and appropriate LLP, Seattle, WA; Dionne, Ellis James J. (“FAPE”). public education I believe we Rorick, Seattle, WA, Dionne & for the must vacate judgment and remand respondents-appellees.
with instructions that the district court enter directing an order the FWSD to select an IEP complies team that with the procedural requirements of the IDEA. Judge Gould separate has filed a concur- ALARCÓN, GOULD, Before ring opinion in joins which he inme con- CLIFTON, Judges. Circuit cluding that the omission of classroom teacher from M.L.’s IEP team ALARCÓN, Judge: Senior Circuit was a error and that we must M.L., minor, C.D., mother, his and reverse the district court’s granting order S.L., father, appeal his from the order summary judgment. Judge Gould has granting summary the motions for judg- applied the harmless error standard of ment Appellees, filed the Federal Way review, instead of the structural defect (“FWSD”) School District and the Wash- analysis I have employed, in concluding ington Superintendent of Public Instruc- judgment must be reversed. contend, alia, They tion.1 inter dissent, failure of the FWSD to include a Judge his agrees Clifton with education teacher pre- on the team that Judge Gould the harmless error test pared M.L.’s individualized applied matter, must be in this but con- (“IEP”) gram rendered the invalid. cludes that the school district’s error in failing to include a regular classroom I persuaded am that we must reverse team, teacher on the IEP required the order granting summary judgment be- IDEA, error, was harmless and did not cause the failure of the FWSD to include a result in the loss of an educational oppor- regular education teacher on the IEP team tunity M.L., deny him a appro- free significantly deviated from the priate public education. requirements of the Individuals with Dis- (“IDEA”) abilities Education Act that at least one education teacher in-
cluded the development of an IEP for a disability student with a pursuant indicated, Unless otherwise the facts are 1414(d)(l)(B)(ii). undisputed. This critical M.L. was born on November structural defect in the constitution of the autism, He suffers from mental complaint 1. The in this matter named the "respondent,” ment Appellants have Washington Superintendent of Public Instruc- challenging not raised issue the merits of ("SPI”) party tion aas to this action. The summary judgment order in favor of the granted summary judgment district court Thus, appear SPI. it Appellants would favor of the SPI on the basis that the claim appeal regarding abandoned their "premature.” was appeal While the notice of SPI. granting refers to the summary judg- order . year Each the class also retardation, and activities macroeephaly.2 As included several of same students delayed globally he was February the' same instructional assistants. domains consis- developmental all across level, cognitive displayed tent his course of improved M.L.’s skills over the problems. was significant behavioral preschool three in Ms. years Wicks’s nonverbal, virtually completely almost more fre- began class. M.L. interact skills, toilet no communication participat- children and quently with other ability trained, cognitive and had extent, ed, activi- to limited percentile on the placed him first teased a times while ties. M.L. was few Inventory.3 Developmental Battelle During years three he enrolled there. *4 class, in Ms. he was Schwarz, was enrolled Wicks’s regarding expert Dr. an llene assigned a one-on-one instructional assis- practices for children au- throughout tant who remained with him tism, might be able to indicated M.L. day. with a familiar service perform tasks
vider, to demonstrate would be unable but displayed increasingly aggressive M.L. do so another when asked to those skills This conduct during behavior time. gains made M.L. had environment. by many was of his service documented and physical therapy between 1997 escalat- providers. aggression His level Puget reports The Sound progress given more ed when he was frustrated or however, indicate, Therapy Services whine, cry, He challenging tasks. would frequently had August as of M.L. bite his instructional assis- or and scratch displayed aggressive and temper tantrums many objects and on at tant. He mouthed hitting pinching, and behavior such as Lai bit child. least one occasion another performance which interfered with his Doo, therapist, in-home testified M.L.’s occupational therapist . M.L.’s therapy. in- level of communication that as M.L.’s that M.L. would benefit recommended creased, aggression decreased. level of his from a more structured environment. However, that M.L.’s Doo also stated Ms. to be a lot aggression “level of seem[ed] enrolled in the Tukwila Pre M.L. was [she had] more than the others that severe at the Riverton Park United Meth seen.” in the Tukwila School Dis odist Church trict He attended disabled, in November 1997. Tukwila Because M.L. approxi preschool days four per required by week was School District years. 1414(d)(1)(A) day year hours for three mately two to create an each per third year, “present for a few months levels of edu- Except that stated M.L.’s “spe- continuously assigned Jodie cational outlined performance,” was ... integrated class until and related services preschool Wicks’s cial education [M.L.],” and set forth provided followed the same be June 2000.4 class January goals.” day, same “measurable annual On using songs each routine adaptive, receptive and ex- Macroeephaly personal-social, is a condition causes part cognitive pressive language, distance around widest skull skills. age expected greater than for the background of the child. "integrated” "regular” 4.An developing typically children consists both Inventory Developmental 3. The Battelle children. and a number disabled small Screening Test is to children six administered They taught by "regular education” eight years old and includes sub- months teacher. motor, gross tests measure which fine 81, 2000, Tukwila School ported District’s this conduct to Ramsey Ms. an IEP for prepared M.L.’s initial testified, Ms. Warden. C.D. later howev- placement for the 2000-2001 er, academic that M.L. “happy as a little lark” (“Tukwila IEP”). Wicks, year Ms. M.L.’s during recess. teacher, preschool was a member of the 7, 2000, September On again C.D. ob- IEP provided IEP team. The that M.L. served teasing children M.L. at recess and in September was to be enrolled during class time. She discussed this con- integrated kindergarten class for 180 min- Ramsey. duct with Ms. Ramsey Ms. told utes, week, per four times and was to C.D. that she “had not witnessed teas- therapy receive additional and instruction- class, ing during of M.L. but would contin- al services. ue to watch for it and intervene if neces- Prior to M.L.’s enrollment an inte- sary.” Ramsey informed C.D. that grated kindergarten class in the Tukwila “policies in place were regarding teasing District, family School M.L. and his moved and that she did not allow such behavior in July the FWSD on or about 2000. her class.” M.L. was enrolled at the Mark Twain Ele- C.D. witnessed additional teasing inci- *5 mentary School the FWSD. The FWSD September 11, dents on September 8 and implemented the Tukwila IEP for M.L. reported 2000. She these events to Ms. until it expire September 30, was due to on Ramsey. Ramsey Ms. replied that “she 2000. Accordingly, placed M.L. was keep eye would an on [M.L.] and would Sandy Ramsey’s integrated kindergarten take care of it.” Ramsey Ms. did not take class in the Mark Twain Elementary any regarding action teasing incidents. School. Ramsey Ms. is certified as a regu- C.D. testified that there was no evidence lar special education teacher. that M.L. actually was by affected At suggestion, Ramsey C.D.’s Ms. con- teasing and that “because he had his head-
trolled M.L.’s behavior in class letting phones on most of the time he being him listen to his favorite music on his teased ... didn’t [she] know if he even headphones. The hired a FWSD series of heard it.” one-on-one instructional assistants to work 12, September 2000, On C.D. called Di- with M.L. Each quit of them after working Niksich-Conn, ane the Vice-Principal of with him day. for one the Mark Elementary School, Twain to C.D. during attended class with M.L. report teasing incident that had occurred days the five that was enrolled at M.L. previous day. Vice-Principal Niksich- Mark Elementary Twain Sep- School. On suggested Conn that C.D. contact Ms. 5, 2000, tember boys C.D. witnessed two Ramsey. Ms. Niksich-Conn then contact- teasing M.L. She discussed this incident Ramsey ed Ms. and advised her to talk to Warden, with Ms. Ramsey and Pat Ms. C.D. Ramsey’s classroom assistant. Ms. Ram- sey responded that she 13, “would make a September 2000, On Ramsey Ms. note and make it a priority keep observ- telephoned C.D. discuss her complaint ing keep eye an on these children and a that M.L. had been teased on September — eye better 11, if anything [M.L.] see 2000. Ms. Ramsey informed C.D. that continued to happen so she could teasing address place took on September might 11, incidents that happen.” On only 2000 was the incident that she had September 6, 2000, C.D. observed more observed. Ms. Ramsey testified that dur- children teasing M.L. at conversation, recess. She re- ing that requested she IEP. and the Tukwila stop identified C.D. an give her C.D. psychologist also interviewed children before The by other teasing of M.L. did M.L. Ms. Wicks. took matter further. C.D. Elementary to the Mark Twain
not return (“Evalua- group produced report 11, did 2000. C.D. September after School Report”) that recommended that M.L. tion administrator speak FWSD with special placed be her from the school. removing child before size, provided offered a small class 17, 2000, predictable con- supports, visual September orOn about or schedules routines. On at the Wild- sistent place M.L. FWSD offered 2000, Drink- in a October Dr. Sarah Elementary School self-con- about wood water, support Thom- FWSD’s director of student taught by Teresa tained classroom5 services, place at the as, teacher offered Wild- special a certified School, Mark Elementary Twain autistic children. wood experience teaching with School, Elementary other several to enroll M.L. the Wild- refused C.D. rejected within the Elementary she be- schools FWSD. C.D. School because wood suggestions. On October classroom each these lieved that self-contained objection filed a Appellants written partic- for sufficient provide would They Report. also re- to the Evaluation education students. ipation potentially provide the FWSD for thought quested “it could She M.L. at independent public evaluation of to interact with dangerous [M.L.]” expense. response, class- the FWSD filed in the self-contained other students process hearing. request a due C.D. did not visit Thomas’s room. any time. classroom at 1, 2000, Saffrey, Dr. Lee On November *6 specialist, Appel- mailed expired Sep- IEP on a FWSD After the Tukwila meeting IEP 30, 2000, proposing a an multidisciplinary a team lants letter tember 13, a.m. 6, 2000, 2000 at 8:00 to determine for November met on October Elementary faxed School. C.D. provided special Wildwood whether M.L. should be 1, Saffrey to Dr. on November A school a letter education services the FWSD.6 2000, that she would pa- in which she stated speech language and psychologist, IEP “the therapist, any meetings and attend unless occupational thologist, an neighborhood child’s from[her] initial evaluation. staff participated C.D. (Starlake Elementary)” present and participated were teacher No education held at only meetings if the were in this assessment. In addition to observ- hours, offices or the Star- interviewing administration two and FWSD ing indi- Elementary C.D. also C.D., of ex- lake School. the initial evaluation consisted attend providers that she would available cated tensive review records a child with and related services to consists 5. A "self-contained” classroom subchapter. only disability this disabled students. under (B) Procedures 1414(a)(l)(A)-(B): 6. See U.S.C. shall consist Such initial evaluation (1) Initial evaluations procedures— (A) general (i) child is to determine whether agency, State A State educational other (as disability defined in sec- child with a agency agency, shall or local educational 1401(3) title); this tion evalu- conduct a full ation, individual initial (ii) educational needs to determine the paragraph with this in accordance of such child. section, (b) before and subsection of this provision special education initial 13, meeting IEP on November 2000 Northwest Behavioral She Associates. 2, 2000, p.m. 6:00 On November Dr. after stated she left home at 3:45 did p.m. and Saffrey notified C.D. location of not p.m. return until 7:30 found The ALJ changed had been to the meeting testimony ad- this was not credible. ministrative offices FWSD and that C.D.’s fax log machine C.D. reflected that at 4:00 meeting p.m. would occur on 13, sent a fax from her home on November Dr. 13, Saffrey also in- November 2000 at The p.m. 5:05 cover sheet was Sapronari, a regu- formed C.D. that Sarah handwriting. C.D.’s special lar education teach- IEP meeting on FWSD was held er, the IEP would be member team. 2000, 13, p.m. Appel- November at 4:00 2000, On November C.D. faxed a let- Thomas, lants did not attend. Ms. a certi- to the in which she ter FWSD stated special fied education teacher assigned would not be able attend the she School, Elementary Wildwood awas p.m. IEP at 4:00 on posed meeting Novem- However, member team. no 13, 2000. stated that she ber She would regular education teacher participated 4:15 a.m. be available between and 5:15 the IEP or meeting evaluated the facts a.m., any p.m. Tuesday, or at 6:00 on Wed- determine whether the was reason- Friday, nesday, Thursday or and at 7:00 ably to provide calculated M.L. with a Mondays. or later on p.m. sug- She also FAPE. meeting Saturdays gested Sundays. on Wicks, A letter written M.L.’s Saffrey Dr. C.D. notified that an IEP teacher, 10, 2000, preschool May dated meeting only during could be conducted by. considered the IEP team. She stated day from 7:00 a.m. to 4:00 p.m. on in this good letter that has “[M.L.] made day Monday through Friday. Dr. Saffrey progress in setting this and exceptional partici- informed C.D. that she could also gains in socialization.” She recommended via pate replied a conference call. C.D. that M.L. in general “remain[ ] November that she would not be kindergarten classroom during his kinder- an IEP team meeting able attend dur- garten year he continue to be ing the days suggested by hours and Dr. supported by a one-on-one assistant.” Saffrey, nor could she or her husband *7 reviewing IEP, After the Tukwila M.L.’s call participate a conference on Novem- records, and Ms. Wicks’s recom- 13, 2000. ber mendation, IEP the FWSD team conclud- (“ALJ”) Law Judge The Administrative ed that M.L. do better in “would a smaller found that the assertion that par- M.L.’s setting with opportunity on to work ents could not attend IEP meeting at specific skill areas” and recommended p.m. 4:00 was not credible. S.L.’s time placement in Ms. Thomas’s self-contained his employer sheet records from indicate classroom at Elementary the Wildwood 2000, 13, that on November his workday provided School. IEP The main- for ended at At the p.m. hearing 2:58 before lunch, streaming opportunities7 during re- ALJ, C.D. testified she was not cess, music, assemblies, library, and school to able attend the November 2000 IEP activities. meeting p.m. participate 4:00 a conference call because M.L. Ms. had an Thomas’s curriculum incorporated afternoon appointment on that day specialized strategies with for teaching autistic "Mainstreaming” a term used to describe activities with non-disabled students. opportunities for engage disabled students to partial motion for Appellants filed a Thomas’s self-contained children. they alleged in which summary judgment integrated than an smaller classroom was the FWSD violated designed specially kindergarten by failing IDEA requirements kindergarten ranging for students teacher on the include a grade. through sixth IEP The filed a cross mo- team. FWSD copy The mailed FWSD summary judgment. The district tion for 17, 2000. Dr. parents on November M.L.’s motion Appellants’ partial court denied offering also enclosed letter Drinkwater summary judgment granted the parents to discuss M.L.’s court found FWSD’s motion. The district did parents M.L.’s and refine the IEP. M.L. was new to the school that because so, process requested due but instead do district, participating and not Depart- an ALJ with the hearing before the time the IEP education classes at ment of Education. place, permissible “it meeting [was] took only teachers [on team] include eight-day due February an likely to him in who be entrusted with regarding appropriate- hearing cess The district court placement.” the new IEP was held before ALJ ness of the if the Court were to also stated: “Even the IDEA. ALJ found pursuant find the district’s failure to include team was District’s evaluation “the teacher M.L.’s The ALJ de- appropriately constituted.”. to a viola- IEP team amounted motion reconsidera- Appellants’ nied IDEA, violation would not tion such tion. of a necessarily constitute denial the ALJ’s Appellants sought review of timely filed a notice of Appellants FAPE.” States District decision before the United May 2002. The district court appeal on District of Wash- for the Western Court jurisdiction pursuant to 20 U.S.C. 20 U.S.C. ington pursuant 1415(i)(2)(A). jurisdiction pur- We (i)(2)(A). judi- petition for § 1451 In their § 1291.8 suant to 28 U.S.C. al- complaint, Appellants cial review alia, failed leged, inter FWSD II safeguards comply A. 1400-15, §§ under 20 U.S.C. provided for 3001-.556, appeal, Appellants In this con Washington §§ 34 C.F.R. to include a tend that the FWSD's failure state law. administrative [state] ceive the records of with this court on 8. The FWSD filed a motion *8 addition, 10(e) of 24, 2002, proceedings"). the In Rule requesting sup- we December Appellate Procedure allows Federal Rules to include plement administrative record "anything be if mate- the record to corrected testimony of Niksich-Conn. Diane party is omitted from or misstat- brief, rial to either Appellants ar- supplemental their letter by ed record error or accident.” reviewing will gue normally court a supplement not con- the record with material Niksich-Conn’s testimo- It clear that Ms. is previ- court. We have sidered the district ny erroneously omitted from the adminis- held, however, reviewing ously "[i]n district court. considered trative record record, court must examine the adminis- this required are to consider- entire Since we determining as whole v. trative record a whether ...Gonzalez record administrative 1197, Cir.1990) Sullivan, (9th determining 1200 914 F.2d court erred in the district added); place- (emphasis special 20 education appropriateness see also U.S.C. of a ment, 1415(i)(2)(B)(l) reaching grant supple- to (stating FWSD's motion § that in its ' decision, record. reviewing required is ment the a court "re- 642
regular education teacher on the IEP each disability child with a that is devel- "significant team was a violation" of the reviewed, oped, and revised in accordance requirements of the IDEA 1414(d) with section of this title.” 20 IEP and renders the invalid ensure 1401(11). § U.S.C. disabled child receives a FAPE. 1412(6)(A)provides Section that “[Chil- argues response The FWSD that it did dren with disabilities and parents their are requirements violate the the procedural afforded safeguards re- IDEA that at least one quired by section 1415 of this title.” 20 participate education teacher evaluat 1412(6)(A). § A required U.S.C. state is
ing the factors to considered “conduct full and individual initial IEP preparation of an because three ... provisions evaluation before the initial "significant members of special education and related services to teaching experience." Appellees' Brief at 1414(1)(A). § child.” U.S.C. authority propo No was cited for this argument sition. construe this as a re 1414(d)(1)(B), §In Congress set forth luctant concession that at regu least one persons who must be included an IEP lar education teacher was not member team to evaluate a spe- disabled student’s team, required by cial educational needs. The statute IDEA. We review de novo whether a vides as follows: proposed provides district's The term “individualized education pro- FAPE under the IDEA. v.W.G. Bd. of gram team” or “IEP Team” means a Cir.1992) Trustees, (9th 960 F.2d group of composed individuals of— ("TargetRang e"). We review a (i) parents of a child with a dis- findings district of fact court's ability; Gregory IDEA case for clear error. K. Dist., Longview
v. Sch. (ii) at least one education (9th Cir.1987). (if is, teacher of such child the child IDEA by Congress was enacted be, may participating in agencies financially assist state and local environment); education educating with Ojai students disabilities. (iii) at least special one Jackson, 4 Sch. v. Dist. F.3d Unified teacher, or where appropriate, at least (9th Cir.1993). Its “to goal is ensure special one provider of such that all children disabilities have child; available to appropriate public them a free (iv) representative local edu- emphasizes education that special edu- agency cational who— cation and designed related services meet their unique prepare needs and them (I) qualified provide, or super- employment independent liv- of, provision vise the specially de- ing....” 1400. The term signed instruction to meet appropriate “free education” public is de- unique needs children with dis- “special fined as education and related ser- abilities; vices that ... provided in conformity *9 (II) knowledgeable is about the with the individualized education program curriculum; general 1414(d) required under section of this ti- 1401(8). (III) tle.” 20 § U.S.C. The term “in- is knowledgeable about the dividualized education program” is availability defined of resources of the local in the IDEA as “a written statement for agency;
643 Further, emphasis the (v) ment. with interpret can individual who general in the progress involvement implications evalu- the instructional the results, may added IDEA-Amend- be a member 'curriculum ation who (ii) 1997, regular ments of education teach- in clauses team described of the increasingly critical role (vi); ers have an through (together special with education and re- (vi) or parent of the at the discretion personnel) implement- lated in services who agency, the other individuals FAPE most chil- ing special expertise knowledge or disabilities, as described dren child, including related regarding their IEPs. personnel appropriate; services as the IDEA Amendments of Accordingly, (vii) the child that each appropriate, requirement 1997 added whenever must include at least child’s IEP team disability. with a of the regular one education teacher 1414(d)(1)(B). § 20 U.S.C. child, is, be, may partici- if child or reg- also provides “[t]he The IDEA regular environ- pating in the education child, of the ular education teacher- (see 300.344(a)(2)). (See § ment also shall, Team, of the IEP member 300.346(d) regular §§ on the role of re- participate appropriate, extent development, in the education teacher IEP of the child.” and revision of the view IEPs.). review and revision 1414(d)(4)(B). The regula- § 20 U.S.C. app. A. C.F.R. 300 the IDEA con- implement tions drafted to following provisions: tain provided IDEA Prior that the public agency The shall ensure obligated to include the school district was disability for each child with team a member the student’s current teacher as includes— 1997, Congress re the IEP team. In
(1)
child;
require
the inclusion of
parents
The
vised
IDEA
regular
least
education teacher
“at
(2)
one
regular education
At
least one
(if
is,
be,
may
child
child
or
such
(if
is,
child
or
teacher of the child
regular
in the
education envi
participating
may be,
regular
in the
participating
ronment)”
“at
edu
special
least one
environment)....
education
e
teacher,
appropriate,
cation
wher
300.344(a).
§
C.F.R.
provider special
one
least
A Part
of Title
Appendix
1414(d)(1)(B)
child.”
such
commentary explains the
following
added).
(2003) (emphasis
education teacher
regular
critical role of
an IEP:
developing
meaning of
terms
plain
Partic-
Regular Education Teacher
1414(d)(1)(B) compels
section
used
Review, and
ipation
Development,
that least
requirement
conclusion
Revision of IEPs
be included
regular
one
education teacher
IEP-team,
may
if the student
often,
on an
Very
education teachers
classroom,
participating
play a central role
the education
Thus,
(H.
mandatory
discretionary.
Rep. No.
children with disabilities
—not
(1997);
finding that the
105-95,
S.Rep. No. 105-
district court’s
p. 103
the IDEA
(1997))
constituted under
important
properly
p.
and have
was
least
curricu- without at
one
expertise regarding
general
According-
clearly
erroneous.
general
lum
education environ-
teacher
and the
*10
ly,
decide whether the FWSD’s
we must
vidualized educational program developed
comply
requirement
with the
through
procedures
failure
of
the Act's
reasonably
at
one regular
the IDEA that
least
edu-
calculated to enable the child to receive
(footnotes
the unique
teacher evaluate
needs of
educational
cation
benefits?" Id.
omit
ted).
fatally compromised the
judgment
a disabled student
The Court reversed the
of
of
IEP and
integrity
compels
Appeals
the
us to the
of
Court
which had affirmed
judgment
court’s
reverse the district
with-
the district court's decision that a deaf
considering
the
out
whether
error was
child was denied a FAPE because school
findings
harmless or
the
of
parents'
whether
the
request
administrators denied her
district
ALJ
the
court that the IEP
be provided
she
with the services of a
requirements
qualified
meets the substantive
of
sign language interpreter
the
in all of
clearly
209-10,
IDEA are
erroneous.
her classes.
at
Id.
The Court
"[T]he
of neither
B.
court
support
would
a conclusion that
Amy's
to com
failed
Citing
v. Bishop,
Poolaw
ply
requirements
with the substantive
of
(9th
830,
Cir.1995),
FWSD contends
(em
the Act." Id. at
we have
County
v. Clark
Sch.
In Amanda J.
of
IEP if a
provisions
an
the substantive
(9th
Dist.,
Cir.2001),
ap
vidualized educational the failure to include reasoned We specified by Id. procedures the Act.” knowledgeable about teachers most “the at We also concluded that where special levels and child’s] [the an inadequacies Id. of the IDEA. at a violation heeds” was an may edu- have resulted loss Shapiro that it We concluded 1076-77. opportunity, deprived child’s cational second necessary to address the participate parents analysis. Rowley of the FAPE Id. prong IEP, an forming appel- meaningfully J., at (citing 267 F.3d at 1079 Amanda two proceed step late should not court 1485). i.e., Range, Target analysis, whether the Rowley *12 646 app. maintains the failure to 34 C.F.R. A. IEP
The
300
The
team did
FWSD
regular
least one
Congress
include at
not include individuals
concluded
that developed
knowledgeable
the team
most
teacher on
were
a disabled
about
type
flaw that
student’s special
is not
educational needs. As a
result,
compel
Appellants
us to hold that
no way
determining
would
have
They
their
to a FAPE.
right
were denied
whether the IEP team
would
devel
Long
oped
cite our
in Ford v.
Beach
considering
decision
different
after
(9th
Dist.,
F.3d
regular
Sch.
291
1086
the views of a
education teacher.
Unified
Cir.2002) for
reli
proposition.
this
Their
The failure to include at
least one
readily
ance on Ford is
It
misplaced.
is
education teacher on the IEP team
awas
distinguishable.
structural
defect
the constitution of the
IEP team.
Ford,
hearing
the state’s
officer and
upheld
involving
prosecutions,
the district court
the school dis-
In cases
criminal
not
Supreme
trict’s assessment that
student was
has
Court
ruled
a struc
court,
disabled.
Id. at
Before
tural
this
defect in the trial
mechanism is
subject
parents
analysis.
student’s
contended that “the
to harmless error
Ari
Fulminante,
279,
dis-
309,
[of
assessment
Amanda’s abilities and
zona v.
499 U.S.
1246,
(1991).
it
inadequate
was
because
did
S.Ct.
abilities]
ipation in principle relief is available under the the evaluation M.L.’s educational needs. IDEA” when a pupils teacher invited her compels defect This structural reversal of to express complaints their about a dis judgment the district court’s without con- humiliation, abled student which led to fist sidering developed the merits of mistrust, fights, loss of confidence and self- at regu- without the one esteem, evaluation least disruption of his educational lar education teacher.9 progress). IDEA, Under the a disabled child FAPE, guaranteed is 20 U.S.C. Appellants further assert that (cid:127)“ 1412(1), ‘provide[s] which
M.L. was denied
FAPE because the
”
handicapped
the-
child.’ Gregory
prevent
failed
take action to
FWSD
benefit
., 811
at
F.2d
teasing
(quoting Rowley,
Ap
other students
M.L. The
K
3034)
(emphasis
U.S.
pellants argue that
is
S.Ct.
there
uncontradicted
added).
If a
deliberately
teacher is
indif
evidence
the record
the FWSD was
ferent
deliberately
teasing
of a
reports
indifferent
C.D.’s
disabled child and
being
that her child was
the abuse is so severe
They
teased.
that the child can
teasing
maintain
no
resulted
a derive
benefit from the services that he
district,
denial of a FAPE.
Neither the statute nor
she
offered
the school
any court
directly
ques
has
addressed the
has
child
been denied a FAPE.
Davis
Cf.
tion
can
teasing
County
Educ.,
whether unremedied
con v. Monroe
Bd.
526 U.S.
629, 633,
stitute a
of a FAPE.
denial
F.
Charlie
S.Ct.
L.Ed.2d 839
Cf.
*16
(1999)
of Educ.,
ex rel. Neil F. v. Bd.
(holding that
to violate Title IX
Although
procedures
would
apply
prescribed
I
structural error
would
most
above,
analysis
recognize
I
outlined
that a
cases assure much
not all what Con-
if
majority
panel
adopted
of the
has
gress
harmless
way
wished in the
substantive con-
error test instead. How harmless error re-
tent
an IEP.
squarely
view is to
205-06,
be conducted
therefore
Rowley,
CONCLUSION district’s error for harmless the school in precedent Tar with our par- the ness—in accord failure ensure FWSD’s J., Shapiro by Range, Amanda get a education teacher ticipation of — procedural the error possibility considering a whether IEP team when there was opportuni in a loss of educational placed integrated in an resulted that M.L. would be parental par- ty significantly restricted violation of significant classroom was IDEA ticipation (1982), formation. L.Ed.2d 690 the Supreme Court may in procedural error be held harmless established for IDEA framework review: cases, appropriate may and this include “First, has the complied State with the mistake in the IEP involving cases how procedures set forth in the Act? And sec- Judge Although was constituted. ond, is the individualized educational pro- I Clifton in dissent concurrence gram developed through the proce- Act’s agree rejection of on the structural error reasonably dures calculated to enable the assessing harm- and on the standard child to In receive educational benefits?” error, less reach different conclusions standard, (and applying this our cases of application governing stan- circuits) of our those sister agree dard.1 We both the harmless adopted approach. structural error In- error turns whether assessment here on stead, each procedural case treats there of opportuni- was a “loss of prong Rowley having subparts: two ty” for M.L. this test for Applying correct First, was there a of violation error, harmless I further conclude IDEA, second, error, if there team, error in composition case, under the circumstances did it affect rights of this the substantive caused a violation of the IDEA and re- (“On plaintiff. See 28 quires reversal of district court’s order hearing any appeal or writ of certiorari granting summary judgment. case, give the court shall judgment I,
In explain Section I what I believe to after examination of the record without controlling be the test for harmless error regard to errors or defects which do not under why our case law and I believe rights affect the substantial par- analysis structural inapplicable defect ties.”). II, an IDEA In I apply context. Section determining The test for whether IDEA test harmless error to the facts record, conclude error affects the substantial error in this case was not harmless. rights parties has been established Henee, I judgment concur reached prior precedent. our In W.G. v. Board Alarcon, Judge but not the structural Trustees Target Range Sch. Dist. No. error analysis that he advances. (9th Cir.1992) "), ("Target Range we stated: "Procedural automatically flaws do not require a find
A ing However, of denial of a FAPE. pro inadequacies cedural Rowley, Board Education v. that result in the loss *18 176, 206-207, 3034, U.S. 102 S.Ct. 73 of educational opportunity, or seriously in Judge 1. Clifton's dissent states: at Dissent 658. Gould, Judge Finally, Clifton in his dissent agree Judge concludes that I as ex- pressed composition the error in I the IEP opinion, in Section of his team was analysis harmless under by apply. structural the same standard supported error is not I part our Our differences place disagree- caselaw has no turn on our and in the IDEA in Judge correctly context. ment on As Gould whether the assessment ob- of loss serves, procedural opportunity question violation is a constitutes of fact error, appropriate public denial of a free and to be reviewed edu- for clear or a mixed law, only cation question when it lost of fact results in a edu- and to be de reviewed novo, opportunity signifi- cational for the as can comparative child or be seen from a cantly parental participation opinions, apply restricts in review our which the same formation of the IEP. contrary but standard reach results.
653
it
in
edu
only
FAPE
when
results
lost
partici
to
opportunity
fringe
parents'
child,
for the
or when
clear
cational
process,
IEP formulation
pate in the
partic
significantly
parental
it
restricts
FAPE." Id.
of a
in the denial
ly result
Target
omitted).2
in the IEP formation. See
ipation
(internal
more re
Our
citations
1484;
at
317
Range,
Shapiro,
960 F.2d
proce
Target Range
cent cases follow
1079;
J.,
892;
F.3d
Amanda
267 F.3d at
at
Shapiro v. Para
analysis. See
dural error
rel.
v.
Island Sch.
ex
G. Vashon
Dist.,
S.
Sch.
317 F.3d
Valley
dise
Unified
(9th Cir.2003)
Dist.,
1115,
F.3d
1129
Cir.2003)
337
(9th
1072,
(quoting
1079-1080
grounds
20 U.S.C.
superseded
other
in
Target Range standard
and
applying
1414(d)(1)(B).
§
par
aof
child's
holding that the omission
prior
from her
school
ents and a teacher
B
in the creation
violations
were
Judge Alarcon characterizes
absence
IEP team which
of her
composition
a regular
education teacher from M.L.'s
FAPE
denial of a
because
amounted
as a "structural error" or a
they
in the loss of educational
"resulted
subject
that is not
"structural defect"
child]") superseded on
opportunity for [the
analysis. Judge
error
Alarcon's
harmless
20
grounds
other
so,
extrapo
In
Opinion
doing
at 612.
he
1414(d)(1)(B);
J.
Clark
Amanda
v.
context,
lates from the criminal
where the
Dist.,
877,
891-892
County Sch.
er
Supreme Court has immunized certain
Cir.2001)
(9th
Range
(applying
Target
rights
rors that affect the constitutional
IDEA
analysis
procedur
an "egregious"
error
from harmless
review.
defendants
granting automatic re
al error instead of
Fulminante,
generally Arizona
499
See
v.
versal).
sum,
Target
precedents
In
in
our
309-310,
1246,
111 S.Ct.
113
U.S.
J.,
Shapiro establish
Range, Amanda
302, (1991); Chapman v.
L.Ed.2d
Califor
by a
all
violations
that not
nia,
18, 22-24,
S.Ct.
386 U.S.
implementing the IDEA
school district
(1967).3
L.Ed.2d 705
result
in the denial
necessarily
will
ap
including
might
one
other contexts
FAPE.
While
Procedural
error —
case,
solution to a difficult
plaud
of members of
a creative
M.L.'s case the omission
analysis
error
strik
the denial of a
find this structural
IEP team —constitutes
infringe”
ability
parental
"seriously
Target Range,
addressed
rors
whether
In
process.
Id. at 1484.
participate in the IEP
of an
consti-
formulation
omissions
appropriate public
a free
tuted the denial of
("FAPE”).
concept
The district court
support
his extension of this
case,
plaintiff family, finding
Judge
cites
held in favor of
civil
Alarcon
two
our
Range
addressing
Target
school district had
cases external
our circuit
parties
United
important
promotional
boards
failed to include
evaluation
—the
teacher,
States,
Army,
Doyle v.
220 Ct.Cl.
parents,
States
United
child's
(Cl.Ct.1979),
Dilley v.
private
F.2d 984
representative
Alexander,
(D.C.Cir.1979).
develop-
F.2d 914
the IEP
child had also attended —in
affirmed,
analogized
Doyle
Dilley
to the structural
We
ment. 960 F.2d
1483-1484.
Chapman, holding
cases
holding
“Target Range clearly did not
defect
discussed
statutorily-mandated re-
required by
omission of
comply
procedures
*19
military
evaluating
boards
analysis
pro-
that
serve officers from
Id.
elaborated
IDEA.”
Our
a
er-
per
promotion
structural
a
se
reservists
errors do
amount
to
cedural
but, rather,
FAPE,
preclud-
per
prejudicial
se
ror which was
of a
will
denial
subsequent
review.
any
ed
harmless error
denied where
find that a FAPE has been
995; Dilley,
Doyle,
at
ingly inapplicable
case
harmless.”
499 U.S.
306,
to
at
655
iting
applying
find
future courts
a struc-
litigation
in IDEA
position
tural error
histo-
legislative
virtually any
text or
support
approach
tural
error
guid-
In
ry
view,
the IDEA.
the absence
my
the
procedural
IDEA
error.
Congress, we
or
from the Court
ance
means
which to differentiate be-
best
IDEA cases are sub-
that
should conclude
is to
each one
tween such errors
evaluate
principle of harmless
ject
general
to the
individually
by each
colored
case’s
—as
in civil and
generally
applies
error
a
particular
apply
facts —and to
uniform
See 28 U.S.C.
criminal
law contexts.
op-
standard that assesses lost educational
52(a);
2111;
§
P.
Fed.
Fed R.Crim.
portunity
parental participation,
or lost
R.Civ.P.
a
by adopting
per
a
se rule that
insulates
analy-
error
Judge Alarcon’s structural
of errors from future review.
It
subset
and
general applicability
a
disclaims
sis
that,
forgotten
interpret-
should
be
limited, advocating
per
a
se
purports
IDEA, we,
district,
like the
ing
par-
only
for the violation
rule of reversal
ents,
participating
and
the advocates
of the IDEA:
requirement
procedural
one
courts,
hearing
administrative
and
the
1414(d)(l)(B)(ii),
require-
§
the
20 U.S.C.
trying to determine what is best for a
are
that an IEP team include
ment
disabled child.
However,
Alar-
Judge
teacher.
qualitative
persuasive
no
con sets forth
II
1414(d)(l)(B)(ii)
§
and
distinction between
Accordingly, my analysis takes me back
procedural
requirements of
the other
commenced, applying
Tar-
to where
IDEA,
are important.7
which too
Conse-
get
Range standard
determine whether
posits no
opinion
Alarcon’s
quently, Judge
composi-
error
IEP team
necessary
logical stopping point prohib-
procedural
or
Act.");
general
possibility,
both
S. v.
education is
real
per se violation of
Heather
Wisconsin,
1045,
(7th
special
Cir.
and
F.3d
1059
classroom teacher
125
643;
standard);
1997)
Range
Op.
(quoting
Target
compare
20
teacher.
556,
S.D.,
1414(d)(1)(B) (2003),
§
283
88
Indep. Sch. Dist. No.
v.
F.3d
with 20 U.S.C.
Cir.1996) ("An
(8th
1401(a)(20) (1996).
§
IEP should be set
IDEA
562
But
1997
substantive,
inadequacies compro
only procedural
and
aside
if
amendments were numerous
scheme,
pupil's right
appropriate
affecting
statutory
edu
re-
to an
entire
and
mised
cation,
hampered
op
seriously
parents'
working
procedural requirements,
in-
several
cluding
process.
portunity
participate
aspects
in the formulation
of the IEP
See
other
Huefner,
deprivation
process,
generally
or
of educational
caused
Dixie Snow
Individu-
(internal
enefits.")
quotation
omit
b
marks
With Disabilities Education Act Amend-
als
Dist.,
(1998).
ted);
Reg.
Rep.
Murphy v. Timberlane
Sch.
Ed. L.
ments
(1st Cir.1994) ("[N]ot every
"[m]ajor
requirements
added
F.3d
Other
new
were
liability
irregularity gives
We
rise to
Id. at 1112-15.
IEP section."
Nevertheless,
focus,
Congress’s purpose
in
under the IDEA.
accounted for
pu
provision, by
compromised the
hold-
adequacies
have]
when it
our
[that
amended
violated,
right
appropriate
rejecting
... or
pil's
ing
to an
it
been
deprivation
argu-
array
of educational benefits
caused
the school district’s
defensive
actions.")
Yet,
nothing
IDEA
stuff
successful
statute
ments.
there is
omitted);
(internal quotation
Hampton
regulations
marks
from which to conclude
its
Dobrowolski,
F.2d
52-53
Dist. v.
changes
Sch.
those
necessitate
(1st Cir.1992).
1414(d)(l)(B)(ii)
de-
own structural
its
separate
analysis,
procedural error
fect
analysis
apart
applied to the other
from the
emphasizes
Judge
the 1997
Alarcon
require-
equally important IDEA
language of
revised the
IDEA amendments
ments,
general
and at odds with the
course
provision, changing
re-
this
teacher,
criminal law.
when
civil
even
quirement from
current
*21
of
to denial
a FAPE
or
regular
tion amounted
Ms. Wicks
other
education
excluding
parental par-
appropriate
either
teacher on the
IEP
participating
team de-
causing
op-
or
a lost
ticipation
prived
educational
M.L. of an
opportunity.
educational
poses
for the child. This case
no
portunity
This
is unmistakable for sev
conclusion
parent
of whether a
of M.L.
genuine issue
First,
eral reasons.
there is the IDEA’S
process,8
was excluded
statutory preference
mainstreaming.
controlling
so
issue becomes whether
The IDEA
mainstreaming
favors
the edu
regular
to include
education
the failure
cation of a
child
disabled
to “the maximum
the IEP team
teacher on
resulted
extent appropriate” given the
of
nature
opportunity” within
“loss of educational
disability.
child’s
20 U.S.C.
meaning of the
in Tar-
test established
1412(a)(5)(A).10
§
When
is
mainstreaming
that,
persuaded
I am
under
get Range.
pursued
child,
with a disabled
and the
circumstances,
M.L. lost an edu-
total
child’s
proceeds
education
in the “Least
opportunity
cational
because the FWSD
Environment,”
Restrictive
as set forth in
requirements
violated the
1412(a)(5)(A),
§
20 U.S.C.
the crucial pur
by failing
partici-
the IDEA
to include a
poses and requirements of IDEA are real
education
pating regular
teacher
ized: The disabled child receives the bene
IEP team.9
of observing
working
fit
with those
statutory requirement
disabled,
that an
are not
who
which can provide
may
team
disabled child who
for a
is or
be
the disabled child with both educational
must
regular
regu-
education
include a
and non-academic benefits. Children who
merely
lar
teacher
techni-
given
is
are not
disabled
may
cal. A
acquainted
teacher
to' become better
with their
or
insights
perspectives
that aid the
peers,
may help
disabled
which
avoid ster
process
IEP formation.
eotyping,
prejudice,
We need not
lessen
prepare
all
say
in composition
that error
of an IEP
together
students
work
in society.
to.
always prejudicial
invariably
importantly,
Most
mainstreaming is the
Rather,
in the denial of a
results
FAPE.'
fulfilling
mechanism for
statutory
goal
we
should assess
circumstances of each that the disabled child be educated in the
case, and here the record demonstrates
least
setting,
experience
restrictive
which
Ramsey
that the failure
include
us is best
development.
tells
child’s
Appellants
opportunity”
do not contend that the FWSD’s
ques-
under
IDEA is a mixed
significantly
error
their
restricted
tion of law and
which
fact
we review de novo.
process.
participation in the IEP
K.,
1310;
Gregory
F.2d
Target
at
Range,
(holding
657 classmates, him, for in- challenges for Dorothy Lip K. & Alan Gartner e.g., See structors, a That Toward and for administration. Special Education: Beyond sky, Students, 57 Harv. But un- System All record before us. Quality clear the (1987) that (concluding circumstances, Educ. Rev. we can- totality the of der body growing” and a “substantial there is statutory vio- conclude that the readily not the academic supports that of evidence having regular a education lation not of developmental value and emotional on the IEP team was participate teacher parents disabled mainstreaming). The is a contrary, the there harmless. To prove regular a ed do not have to children op- strong mainstreaming that likelihood their chil is best for environment ucation M.L. would have been bet- portunities for rather, dren; it is school district’s bur the regular a education ter considered had the in the IEP extent explain den prepa- part program’s taken teacher participate regular a child cannot which ration, mainstreaming that more and activities. education under for M.L. might permitted have been 1414(d)(l)(A)(iv). § Hence, IEP. I do not that we the believe Second, Wicks, prior regular M.L.’s IEP that error in properly can hold teacher, written to the had here was harmless. composition team FWSD, informing district that the school on record that I conclude this Because progress” in her “good had made M.L. pro IEP we must hold that FWSD’s non- class, comprised of twelve which was opportu a “loss of educational cess caused or five and four students disabled district court’s conclusion nity,” and the needs,” that recommending “special error,11 not reach the second was I need during regular remain M.L. i.e., analysis, whether step Rowley Third, year. FWSD kindergarten “reasonably to en IEP calculated was education teacher appointed regular team, bene receive educational inexplicably IEP went able child to to the but meeting planning with the IEP U.S. at 102 S.Ct. Rowley, forward fits.” partic- presence 3034; that teacher’s (providing without see also 28 U.S.C. Fourth, past IEP and M.L.’s ipation. ... hearing any appeal that”[o]n it was demonstrated placement case, judgment give court shall could possible conclude least without record after examination regular in a education classroom. placed not or defects which do regard to errors rights part affect the substantial certainly that M.L.’s edu- recognize I ies”).12 poses regular in a classroom serious cation nonacademic benefits initially my the academic and ized reach this conclusion on I But, page 659. Dissent at question available to him.” premise that the issue is mixed regarding findings law, made its the district court predominantly factual in fact reasonably was calculated whether the IEP statutory preference for light IDEA’S bene- educational enable the child receive mainstreaming; I were but even if to view exper- benefit of the views standard, fits without the error” I under the "clear this issue having regular teacher tise of classroom the district court’s would still conclude that team meet- expressed at the critical IEP been summary theory grant judgment on ing M.L. The IDEA mandates discuss opportunity was no educational that there lost a member of teacher be was reversible error. per se Although I do think team. our under reversal from violation that we must affirm follows dissent concludes 12. The precedent, doubt the inclusion is no found "that there the district court because on the of a education teacher developed by team the IEP We M.L., purposes promotes the of the IDEA. because it maxim- placement for best
CLIFTON, Judge, dissenting: Specifícally, I Circuit conclude the failure to include a classroom teacher on the my colleagues many agree with IEP team result in did not the loss of an par- this case. important issues deny for M.L. or *23 I, II-A, ticular, II-C,1 join I in Sections him' public a free appropriate education. opinion, Judge and III of Alarcon’s and in Accordingly, I respectfully dissent. Gould’s Judge opinion. Section I of In English, agree that I with' that means both my colleagues Both of focus on Plain- Judge Judge Alarcon and Gould procedures challenge employed tiffs’ to. the regu- school district should included a district, by the which was the issue on lar classroom teacher team and that emphasized appeal. Plaintiffs on do so the failure to constituted a district court apparently concluded that procedural violation of the IDEA. I also the IDEA require did not the IEP team to agree my colleagues with that the school teacher, include a classroom a view procedural prevent district’s error did not panel all three of on this agree us was parents participating M.L.’s from incorrect. The district court did not rely To formation of the IEP. the extent that only on that legal erroneous conclusion to enjoyed parents partic- M.L.’s limited decision, support its however. Perhaps ipation parents it was because volun- recognizing question, it was close tarily removed themselves from the the district court observed that if’ “even I, Finally, Gould, cess. with agree Judge the failure to a regular include classroom I expressed opinion, as of his Section a procedural teacher amounted to viola- analysis that a sup- structural error is not tion, “such a violation would not necessari- ported by our and has no place caselaw in ly constitute of a the denial FAPE.” The Judge the IDEA As context. Gould cor- district court on relied W.G. v. Board of observes, rectly violation con- District, Range Trustees Target School appropriate stitutes a denial of a free and (9th Cir.1992), 960 F.2d public only when it results in a County Amanda v. J. Clark School Dis- lost educational for the child trict, (9th Cir.2001) —the or significantly parental partic- restricts my colleagues’ same cases cited in opin- ipation in formation the IEP. ions—and determined that question “the
I part my colleagues with in the applica- whether the alleged violation case, tion of these to this principles how- amounted to the denial of a FAPE de- ever, pends different and reach a conclusion. on or not M.L. whether suffered a ought speculate noncompli- assignment here that ed in a different for M.L.’’Dissent page ance at with the standards mandated in the IDEA matter. did not Because the regu- failure of the school district to include a precise, agree 1. To be I while with the main team, lar classroom on the IEP teacher con- II-C, point of Section which is that the school
joined with the other circumstances reviewed procedural requirements district violated the above that made IDEA, for M.L. a join of the I do not the last sentence possibility, say distinct we cannot the error Judge of that section. In sentence Alar- reasons, was harmless. these For and be- applies con analysis the "structural defect" my disagreement cause of on the standard opinion contained II-B in Section of his review, supra see notes 9 and I cannot reach the conclusion district court’s agree dissenting my colleague’s with judgment disagree conclu- must be reversed. sion that if a classroom approach teacher had both defect the structural and the participated join on the IEP team “there [not] conclusion. do I in the Nor footnote possibility realistic that it accompanying would have result- that sentence. out, completely is almost points opportuni- loss of substantive virtually no com- essentially legal non-verbal. He has same ty.” That skills, majority of our munication the time of his adopted by a standard me), yet trained. (consisting Judge Gould and evaluation he was not toilet panel at the Judge cognitive ability places I of Gould’s His him Section expressed appears, it level on the Battelle opinion. large part, percentile because first Inventory.... kin- way Developmental [A] the case was framed parties, geared the dis- toward dergarten made arguments ques- reading teaching went to address that children skills is trict court terminology. very pre- using tion somewhat different different environment *24 Nonetheless, the court made factu- district school. that point
al conclusion findings process due experts The District’s not suffer a substantive loss M.L. did hearing uniformly special identified opportunity. agree with educational placement at Ele- education Wildwood findings and reach court’s district option, mentary superior as the and Pe- conclusion. same testimony in expert titioners offered no dis- vigorously argued to the Plaintiffs rebuttal. vio- that the school district had
trict court
law
found that
judge
The administrative
requirements of
lated the substantive
regular
in a
IDEA,
procedural require-
its
as well as
in-
classroom environment M.L. would
by
alleged
A
violation
ments.
substantive
primarily with his one-on-one aide
teract
Plaintiffs was that the
district
peers.
... M.L. lacks
opposed
as
to his
maxi-
“mainstream” M.L. to the
failed to
independent
necessary even to
skills
plan
possible. The
mum extent
in an inte-
socialize with other children
prepared
for M.L. did not
IEP team
setting-The
grated classroom
Wild-
“inte-
“regular”
in a
placement
vide for
placement
...
special
wood
classroom,
kindergarten
as his
grated”
worlds;
it teaches
offers
best of both
wanted,
parents
in a “self-contained”
but
func-
challenges
children with M.L.’s
special
disabled and
with other
classroom
presence of an
constant
tion without the
re-
education students. The district court
adult,
mainstreaming
offers
it also
plan
team’s
and discussed
viewed
throughout
the week
opportunities
objections
it.
substantive
Plaintiffs’
opportunities for socialization
provide
in terms
framing
While not
that discussion
The ex-
non-handicapped children.
opportunity,”
of a “loss
in this case
unanimous
pert testimony
fact
findings
detailed
district court made
is the least restrictive
Wildwood
program developed
to the effect that the
for M.L.
option
the best
by
placement
the IEP
significant
no
non-aca-
The Court finds
M.L.,
placement maxim-
because that
benefit to M.L. from
demic
bene-
the academic
non-academic
ized
placement.
to him.
available
fits
...
that M.L.’s
Court must
find
[T]he
factual
are
findings
district court’s
in the classroom
disruptive presence
enlightening:
likely
the education
impair
would
hope
gain
could
little academic
normally developing children.
in a
placement
from a
benefit
balance,
find that
the Court cannot
on de-
On
kindergarten classroom focused
to mainstream M.L.
As the District
the District failed
veloping reading skills.
Here,
possible
develop-
the maximum extent
the evidence establishes
ing
IEP.
his
has extremely disruptive
[M.L.]
behav-
iors and must be
constantly
monitored
court’s factual findings
The district
by a 1:1 aide.... Until
is' able to
[M.L.]
consistent with those
the administrative
generalize
increase and
receptive
his
law
judge
process hearing.2
the due
expressive
skills,
communication
Fact,
Her 73-page Findings of
Conclusions
directions,
and is able to attend to adult
Law,
thoroughly supports
Order
he will continue displaying behaviors
the district court’s
Specifical-
conclusion.
such
whining,
crying, biting, pulling
ly, the
law judge
administrative
found:
others,
scratching,
laying down on
evidence establishes that
[T]he
[M.L.]
the floor and throwing
Although
fits.
expected opportunity
has no
for making
this behavior would be
addressed
meaningful
progress
academic
in the ...
aide,
1:1
it would nonetheless be dis-
kindergarten
class-
tracting to the teacher and the other
room .... While
autistic
some
children
students.
do
in an integrated
well
classroom if
they
high
skill levels and can at-
The findings by district
court and
*25
directions,
tend to
the overwhelming-evi-
administrative law judge
a
constitute
fac-
dence establishes that
has diffi-
[M.L.]
tual determination that the program devel-
directions,
culty attending to
very
has
oped by the IEP team was
place-
the best
domains,
low skill levels across all
ment for M.L. because the academic and
difficulty making
transitions and
non-academic benefits to M.L. were max-
Therefore,
learning routines.
[M.L.’s]
placement
imized
in
a self-contained
opportunities
a self-con-
classroom, rather than a regular kinder-
tained classroom are better than those
garten classroom. The
support-
evidence
in [regular]
a
classroom.
ing that conclusion was overwhelming.
support[
The level of
]
[M.L.] needs
This
factual
necessarily
determination
will interfere with
ability
to make
that,
means
even though
plan
the IEP
progress
non-academic
in regular
edu-
prepared
M.L. was
through
procedurally
environment,
cation
even with a trained
process,
flawed
plan prepared
by that
staff assistant.
will
dependent
[M.L.]
be
team did not
result
a loss of educational
assistant,
on his
which means he will
opportunity for M.L.
have less
to interact with
peers.
day
spent
His
will be
It
interacting
important
recognize
with the adult assistant and not his
district court
simply
did
determine
no.t
Therefore,
peers.
placement in gener-
that Plaintiffs failed to state a substantive
al education
may
in fact be violation of the IDEA. The statute re-
more restrictive than a self-contained
quires only that a disabled student
giv-
classroom.
en an “appropriate” education. There is
The evidence
no
establishes that the self-
substantive mandate that a school dis-
contained classroom at
trict provide
program
Wildwood' will
the best
possible.
provide
with opportunities
As
Supreme
[M.L.]
for so-
Court
observed
Board
and modeling
peers
176,
cialization
Education v. Rowley, 458 U.S.
normal
behaviors and communications
(1982),
S.Ct.
The final participated team, reason on the IEP I do not past that “M.L.’s place- is think that there was a possibility realistic ment it demonstrated was at least that it would have resulted in a different possible to conclude that M.L. could assignment be for M.L. If a regular classroom placed regular in a education classroom.” present, teacher had been teacher Anything possible, highly is but it is un- along with the rest of the IEP team would likely including regular necessarily have considered hap- what teacher on the IEP team would pened during have re- days the five that M.L. was sulted in a recommendation that M.L. Ramsey’s regular kindergarten placed in a kindergarten class- Way class the Federal district. An room, explain as I will below. More im- instructional assistant assigned portantly, found, as the district court such M.L. on a one-on-one basis because his a placement would not have been the best great needs were so that he could not be placement In being for M.L. denied such dealt with part of the class as a whole. placement, an he did not lose educational There was a different instructional assis- terms, opportunity. by propos- broader tant every day, because each quit one after ing placement which would have single day. better M.L. was allowed to listen to needs, served his the school district did not through favorite music headphones provide fail to him class, with a free appropriate while in keep control, him under education, public primary requirement which meant that his involvement with the of the IDEA. rest of the class was limited at best. Though thought M.L.’s mother that M.L. aim principal of the statute is to students, was teased other she acknowl- improve provided the education to the af- edged herself that M.L. did not appear to fected children. See 20 U.S.C. it, be aware of because he had his head- 1400(c)(1) (“Improving educational re- phones on most of the time. After five sults for children with disabilities is an days, the mother removed M.L. from essential element our poli- national classroom and refused to return. With ”). cy.... goal That is not served satis- history, proposition that Ms. Ram- fying parents’ placement desire for a sey other classroom teacher which would not have maximized the bene- attempted would have persuade the oth- fits for the child. The law could have been er place members to M.L. in give parents written to of a disabled child another kindergarten classroom is power absolute placement over the deci- dubious. sion, but it was not. Certainly parents should play important role and must be It is unlikely even more that any such included process, within the and that a person would have succeeded in persuad- *29 key part obligation im- ing the other members of the IEP team. posed by IDEA. But IDEA does not and classroom teacher would not should not impose liability on a school have been the final decisionmaker. That when the IEP provides for the best Rowley, Wicks, teacher —be it Ms. gram student, for the though parents his someone only else—would have been one the team had team. And member CO., LIFE INSURANCE PRINCIPAL just reports than go
much more corporation; Petula Associ an Iowa Prior to the teachers. previous M.L.’s Ltd., corporation; Equi ates Iowa formed a meeting, the district IEP team ty Ltd., corporation, an Iowa team, FC including multidisciplinary separate Plaintiffs-Appellants, lan- speech and psychologist, a a school occupational a certified pathologist, guage v. mother, to evaluate and M.L.’s therapist, ROBINSON; L. A. Chester Constance team also recom- That the student. Robinson, individually and as trustee special placement mended Trust; Lynn of the Chester Robinson needs, rather tailored to M.L.’s Robinson; Kay Bell; Thea Wood; Dee classroom. regular kindergarten in a than Hanson, Defendants-Appellees. unani- matches the That recommendation experts present- all the mous judgment of No. 03-35376. judge and the law ed to the administrative Appeals, Court of United States circumstances, those district court. Under Ninth Circuit. reasonably that includ- possible it was in the IEP classroom teacher ing regular 3, 2004. Argued and Submitted Nov. in an would have resulted meeting Filed Jan. M.L. in a edu- placed IEP that during kindergarten cation
year. shrug off are hesitant to
My colleagues error made here
lightly
understandably so. The safe- important the IDEA are
guards of in all But in followed cases.
should be overwhelming evidence
light of maximized placement
the self-contained and non-academic benefits
the academic M.L., agree I cannot that the district findings were erroneous.
court’s factual disagree I with the conclusion of
Nor can court that the school district
the district appropriate pub- a free deny
did not respectfully Accordingly,
lic education.
dissent.