*1 simply government it shows that the want- M.M.; E.M., individually and on put win behalf
ed to this case and forward the C.M., of their minor son arguments justify best it could to what Plaintiffs- Appellants, Agent Logan premise did here. From the government believes it has a cer- v. power, tain it not follow does DISTRICT, LAFAYETTE SCHOOL government routinely pow- exercises that agency; Lafayette local educational government’s litigating position er. The Education, Defendants-Ap Board of is, therefore, irrelevant to the in- Roberts pellees. quiry. M.M.; E.M., individually and on behalf Thus, having far from “abundant evi- C.M., of their minor son Plaintiffs- dence that the violation at issue has oc- Appellants, repeatedly frequently,” Maj. curred 837, op. at we have before us a paucity of evidence that does not come close to over- Lafayette District; Lafayette School coming “high obstacle for those urging Education; Board of State of Califor- application of the [exclusionary] rule.” Department Education; nia Jack
Scott,
364-65,
Public Instruction for the State of California; Sassone; Dana California IV Department Services; of General Will significant Given the costs of exclusion Bush, Defendants-Appellees. cases, meager PCA as well as the evi- 12-15769, Nos. 12-15770. dence of PCA violations contained in the United Appeals, States Court of record, I would hold that the violation at Ninth Circuit. issue here does not merit application of the exclusionary rule.4 majority opinion’s Argued 5, and Submitted Nov. 2013. contrary holding ignores the Supreme Sept. Filed 2014. exclusion, Court’s clear teaching on our precedents’ own Amended Oct. stringent test for applica- tion of that extraordinary remedy, and the rejection
uniform of exclusion federal
courts in the PCA context. Because this provides justification
case no setting free, pornographer
convicted child I re-
spectfully dissent. claims, board, Dreyer’s remaining 4. As for although my I limit discussion here to the issue I would affirm the district court across the majority opinion. addressed *4 Foltz, Oakland, CA,
Lina for Plaintiffs- Appellants.
Amy (argued), R. Levine Dannis Woliv- Kelley, Francisco, CA; er San Katherine Alberts, Leone, A. Stubbs & Walnut Creek, CA, for Defendants-Appellees La- fayette School District Lafayette and Board of Education.
Amy Holloway, Counsel, Bisson General Aguilar, Edmundo Assistant General Counsel, and Leonard (argued), Garfínkel Counsel, Deputy General California De- partment Education, Sacramento, CA, for Defendants-Appellees California De- partment of Education and Jack O’Connell. Before: SIDNEY R. THOMAS and RAWLINSON, JOHNNIE B. Circuit Judges, DUFFY, and KEVIN THOMAS (“SORT”) Reading Oral Test Judge.* Slosson District Senior Early Dynamic Indicators of Basic Lit- OPINION (“DIBELS”) eracy Skills test. District together staff then after each came assess- THOMAS, Judge: Circuit period ment each to discuss student’s re- consider, among other appeal to that' need “pinpoint sup- sults children matters, failure whether school district’s beyond instruction,” ... port general testing provide par- data to educational guide intervention—or additional in- procedural requirements ents violated receive, struction—the child would then with Disabilities Edu- Individuals progress and to monitor the the student Act, §§ 1400-1487 cation U.S.C. implemented made to the in- response (“IDEA” “Act”). that it or We conclude meetings were tervention. These called did. also conclude the failure We meetings, “Assessment Wall” prevented the data Maddux, by Principal Mary were attended participating in the cre- meaningfully from (“1ST”) Teacher Support Instructional pro- ation of his individualized education Jones, Harris, Reading Specialist Jane (“IEP”), denying gram thereby their son a general teachers from education each public free education appropriate grade complete RTI level. The assess- (“FAPE”) the IDEA. under graphs ment results and related were not given parents. I began That year, kindergar- same C.M. appeals consolidated arise out of These Elementary at Lafayette ten School when complaints three and three administrative RTI, Through he was six old. years concerning district court lawsuits the edu- District identified need read- C.M. C.M., provided to opportunities cational ing began providing intervention and him child identified as individ- who has been instruction, additional which continued learning par- ual disabilities. throughout year kindergarten his and into ents, E.M., appeal from the dis- M.M. via a following summer sum- affirm trict court’s decision to the Office of Specifically, mer class. C.M.’s DIBELS (“OAH”) Hearings judge’s Administrative kindergarten year during results his *6 Lafayette Dis- conclusion School Seg- him in Phoneme placed at benchmark “District”) (the trict did not violate Fluency mentation but below benchmark IDEA. Fluency, in Initial Letter Naming Sound school During year, the 2005-2006 Fluency, Fluency. and Nonsense Word Response-to- a new implemented District report card kindergarten His indicated (“RTI”) approach to assist Intervention writing reading some areas in and where general in struggling learners edu- and grade he met level standard some cation District RTI as program. The used approaching grade areas where he was step referring before a intermediate level standard. special placement. student for education grade, In first continued receive Harris conducted C.M. Reading Specialist Carol October, reading par- all in In his assessments” of students intervention. “universal request grade third a written to the through three ents submitted kindergarten District to an evaluation C.M. year, perform times which included the each school * York, sitting by- New Duffy, the Southern District of Kevin Thomas Senior Honorable designation. Judge the U.S. Court for District for District learning pillar reading,2
for The District con- disabilities. ness which “refers to a (“SST”) Study vened two Student Team person’s ability to detect and access the in meetings with the November sound structure of language.” Based on February referring and before C.M. for determination, eligibility the IEP special education evaluation. SST developed program team an education in in meeting notes referenced narrative form begin which C.M. would in participating difficulties, and teach- Support the school’s Instructional Pro- concerns, ers’ and the interventions he was (“ISP”), gram receiving instruction lan- receiving. graphs C.M.’s RTI data were guage arts from 1ST Jones for 45 minutes during meetings, not reviewed the SST week, day, four times a him help February meeting and the notes reference reading his difficulties in and writing. The only mid-year his SORT score and his IEP team meeting approximately lasted Strategic rating, overall DIBELS which to 45 minutes. rating. denotes a below benchmark participated C.M. in the ISP eventually completed spe- The District remainder of grade year, his first and at cial education Assessment Plan on Febru- year, the end of the his DIBELS results 20, 2007, ary on that day and same ob- him placed above benchmark in Phoneme E.M.’s consent tained move forward Segmentation Fluency but below bench- with the initial evaluation. The District mark in Fluency Nonsense Word and Oral conducted the evaluation March Reading Fluency. His grade report first April, which included an educational readi- card indicated he was grade below level ness assessment 1ST Jones and intel- reading standard in approaching development lectual developmental grade writing. level standard in history Psycholo- assessments School grade, second C.M. par- continued to gist Intern Charpentier. Michelle Al- November, ticipate the ISP. In late his though the Assessment Plan also included private obtained a evaluation from and motor/perceptual de- soeial/emotional Doctor of Audiology Dimitra Loomos. Dr. velopment assessments those assessments Loomos’s evaluation revealed that C.M. were performed. auditory had a central processing disorder The District emailed the assessment re- (“CAPD”) that was learning related to his 17, 2007, sults to C.M.’s on April disability. Auditory processing “is defined meeting and held the first of C.M.’s IEP as the execution specif- and coordination of following day. team the Based on the ic auditory mechanisms in an interactive evaluation, team, IEP which included ... manner that allows the central nervous parents, determined eligible C.M. was system detect, decode, synthesize education because he had interpret auditory information.” phonological processing A pho- disorder.1 nological processing assessment, disorder is one Similar to the subset DIBELS *7 auditory processing of an good phonemic disorder and re- C.M. demonstrated aware- specifically lates phonemic to the aware- good auditory ness as well as discrimina- Specific Skills, Learning Disability Eligibili- 1. C.M.’s Working Memory, Sensory-Motor Cog- form, ty Summary Abilities, which commemorates his Functioning. nitive and Executive determination, eligibility provides a list for particular the IEP team to mark which Pro- pillars reading phonemic 2. The five are cessing may Disorder a child have. The list awareness, decoding, fluency, comprehen- Attention, Auditory Processing, included: sion, vocabulary. and Phonological Processing, Processing, Visual later, closure, to the renewed IEP. About one week auditory fig- tion, auditory auditory attention. received the final evaluation ability, parents and ure/ground “a showed Conversely, performance private they C.M.’s another evaluation report for information auditory integrating for deficit Patholo- Speech-Language obtained from system auditory nervous the central Swain, within found that gist Deborah which C.M. binaural ability perform in the ... [and] ability “experiences range average a from auditory signals.” separation of significant difficulty specific with skills auditory-based language processing.” report in her explains Dr. Loomos the world simulta- we view “[b]ecause Thus, throughout spring, senses, through the individual neously paid for to attend sound-based thera- C.M. working pieces to fit all the constantly are conversations between E.M. and py, and picture. the whole get in order to together ongoing concerning were C.M.’s teachers prop- not system nervous If the central the recommendations C.M.’s CAPD and with auditory input erly integrating reports. contained both evaluation (visual, tactile, etc.), sensory input other meeting was held at the May, an informal incomplete puz- an up the child ends with need for parents’ request discuss C.M.’s zle____ signs poor displaying Children and speech language a and assessment may also skills on CAP tests integration IEP to address C.M.’s clarification of the auditory-visual demonstrate deficits were made to'the No amendments CAPD. integration (e.g. skills visual-motor and/or grade year, By IEP. the end of his second spelling, writing, reading recognition, arts language Below Basic in C.M. scored etc.).” Loomos made a number Dr. test, was standardized which on state in terms of en- recommendations C.M. parents. his His DIBELS shared with modifications, interven- direct vironmental placed him below benchmark results tions, strategies. compensatory and Reading Fluency. grade His second Oral teacher, grade Jody Car- second C.M.’s grade was report card indicated he below son, Dr. Loomos’s evaluation was aware of writing. reading in both and level standard report for Dr. completed because she Loomos, grade the final third gave copy E.M. Three weeks into C.M.’s and Carson, 17, 2008, report to Ms. 1ST the District year, September evaluation on Jones, the school front desk when meeting IEP team at convened an interim holiday alia, break. discuss, resumed after school inter request to meaningful over his lack of their concern February, RTI SORT As of improved the need for progress, academic March, 18, declining. were On scores IEP, in the goals objectives convened C.M.’s first the District the IEP to better address amendments to IEP meeting, IEP and the annual review meeting, At the C.M.’s CAPD. However, a renewed IEP. developed team disa- the District also advised only IEP identical to the the new was results, 2007 Assessment greed with the IEP, to reference it also failed previous they requested in writ- day later that any modifica- CAPD or educational evaluation ing independent an his to address tions or accommodations (“IEE”) For expense.3 District’s at the parents consented unique deficits. C.M.’s complaint due requested IEE or file a disagreed the assess- 3. Once IEE, requested had of General Department the District California ment and with the could, IDEA. It “with- two choices under the defend the 2007 Assessment. Services to unnecessary delay,” provide the either out *8 months, respond ing the District did not the 2007 Assessment. The District two request sought Department to the IEE and instead the also asked the of Education to C.M., stay reevaluate investigation parents’ consent to but its of the com- they not consent and did parents plaint pending the did because the IEE issue was OAH, request their for an IEE. Department not withdraw the and the of Edu- cation investigation. closed its After a December, parents the obtained an day hearing, three the administrative law expense by at their own Li- evaluation (“ALJ”) judge holding issued a decision Psychologist censed Tina Guterman. Dr. unnecessarily delayed District evaluation, which Guterman’s educational defending the 2007 Assessment and also prior included a review of C.M.’s evalua- parents long found that the waited too background, tions and found C.M. had request the IEE. The ALJ therefore or- auditory processing weaknesses and se- par- dered the District to reimburse dyslexia that his IEP vere and services only ents for half the cost of Dr. Guter- were insufficient to meet his needs. Her man’s evaluation. The ALJ also found report states that students with similar reevaluation, that conditions warranted larger profiles as C.M. “make and more permitted proceed the District to with gains through systematic resilient immer- new assessments of C.M. in a multi-sensory pro- sion research based gram high delivered at level of intensi- 16, 2009, April parents On filed a ty.” Dr. Guterman made number of process complaint OAH, due with the al- recommendations for C.M.’s instructional leging separate against claims the Dis- program. trict regarding its identification of C.M. as disability a child with a develop- and its parents subsequently withdrew plan, ment of an assessment appropri- from C.M. the ISP and enrolled him in an Assessment, ateness of the 2007 and the private reading comprehension intense District’s development oversight program that better addressed his multi- August IEP. In year, parents sensory integration deficits while process filed a second due complaint with negotiate the District continued to his OAH, alleging in four claims that the IEP. The IEP participated team in a ser- District denied C.M. a FAPE. The ALJs meetings ies of facilitated period over a dismissed the claims that arose before seven months. The did not ulti- 16, 2007, April being as outside the statute mately agree to a renewed IEP for C.M. limitations, and after an day eleven until the end of grade year. his third hearing, held that the 2007 Assessment 18, 2008, On November day the same appropriate, deny was the District did not the first facilitated IEP team meeting, the FAPE, C.M. and C.M. was not entitled compliance complaint filed a private receive reimbursement for his Department California of Education compensatory education services. (“Department Education”), alleging the District comply failed to with the August September Between 2009 and procedures IDEA request after their initiated three lawsuits December, Early an IEE. against the District the District and its Director of responded to IEE request by filing Sassone, a Student Services Dr. Dana Education, due complaint Lafayette with the California Depart- Board of Services, Department of General Superintendent, defend- ment of Education and its 300.502(b)(2); 56329(c). C.F.R. Cal. Educ.Code
851 Department gress of General enacted the IDEA “to ensure that and all the California Director, dis- its in federal children with disabilities have available to Services and appropriate public the OAH them a free seeking trict reversal of education court fees, emphasizes special that education and decisions, attorney’s and remedies re IDEA, § lated services meet designed of the 504 of their various violations ” Act, unique needs.... 20 the Rehabilitation and the Constitu- U.S.C. 1400(d)(1)(A). § provides The IDEA for a tion. cooperative process between and multiple orders The district issued that schools culminates the creation of of and dismissing portions the lawsuits every an IEP for disabled student. See consolidating remaining claims.4 On generally § 20 U.S.C. 1414. 2012, 7, February the district court issued order, finding Dis- its final in favor of the A principle throughout core claim, trict its on all but one and issued meaningful participation by par IDEA is 8, final judgment on March 2012. consent, ents and informed parental mak parents timely appeal. filed notices of We ing integral part jurisdiction pursuant have to 28 U.S.C. team determines both whether 1291, § affirm in part and we and reverse disability child is a child with a and the in part. content of the IEP. See 20 child’s U.S.C. 1400(c)(5)(B), 1414(a)(1)(D), §§
We review the district court’s
300.306(a)(1).
1414(b)(4)(A);
§
34 C.F.R.
fact for clear
when
findings of
error even
Act,
crafting
Congress
placed
In
also
they
are based on
written record
great emphasis
safeguards
on procedural
proceedings. Burlington
administrative
of children
rights
to “ensure
with
N.,
Co.,
304,
Weyerhaeuser
F.2d
Inc. v.
719
disabilities
of such children
(9th Cir.1983);
Long
307
K. v.
Gregory
1400(d)(1)(B).
§
20
protected.”
are
U.S.C.
(9th
Dist.,
view Sch.
1310
compliance
“Procedural
is essential to en-
Cir.1987). A
finding
clearly
fact is
erro
every
suring
eligible
child receives a
neous when the evidence in the record
FAPE,
pro-
and those
which
procedures
supports
finding
reviewing
but “the
meaningful parent participation
vide
court is left with a
and firm convic
definite
J.,
Amanda
particularly important.”
are
tion
has
that a mistake
been committed.”
F.3d at 891.
267
N., Inc.,
Burlington
F.2d at 307.
719
Questions
questions
law
mixed
FAPE
IDEA
A
is defined
fact
Gregory
and law are
de novo.
reviewed
education
related
“special
services
.,
II
1414(d)
quired under section
title.”
1401(9).
provides
§
IDEA
“Special
“The
states
20 U.S.C.
education”
help
“specially designed
federal funds to
educate children with
defined as
instruc-
is
tion,
provide every qualified
parents,
disabilities if
at no cost to
to meet the
a FAPE that
the federal
needs of a
with a
unique
child with
meets
child
disabili-
1401(29). An IEP
statutory requirements.”
ty....”
Amanda J. ex
20 U.S.C.
Dist.,
rel.
each child with a
Cnty.
Annette J.
Clark
Sch.
“a written statement for
(9th Cir.2001).
reviewed,
267
that is
disability
developed,
F.3d
882
Con
Dist.,
appeal
681
previous
concerning
Lafayette
claims in
M.M. v.
Sch.
F.3d
court.
lawsuit,
Cir.2012).
(9th
the first
affirmed the district
1414(d)
them
They argue
revised
accordance with section
with C.M.’s
data.
1401(14).
that the failure to
them the RTI
of this title.”
U.S.C.
*10
data forestalled them—as members of the
comply
A
district “must
school
carefully
IEP team—from
considering all
proeedurally
substantively
both
with
making
eligi-
available information in
the
Hellgate Elementary
the IDEA.” N.B. v.
determination,
bility
prevented them from
Dist.,
Dirs.,
Sch.
ex rel. Bd.
Missoula
of
giving
parental
informed
consent for both
(9th
Mont.,
1202,
541 F.3d
1207
Cnty.,
the initial evaluation and the services C.M.
Cir.2008) (internal quotation marks omit
receive,
right
would
and violated their
to
ted). Thus, to determine whether a school
examine C.M.’s records. We conclude that
FAPE,
provided
district has
we make a
the District did not fail to incorporate the
First,
inquiry.
two-part
we determine
evaluation,
RTI data into the
but that it
“complied
whether the school district
with violated the IDEA’S procedural require-
Act,”
the
procedures set forth
the
by failing
provide
ments
to
the
second, we determine whether “the indi
the RTI
with
data.
program
vidualized educational
developed
through
procedures
the Act’s
reason
[was]
1
ably calculated to enable the child to re
evaluation,
In conducting the initial
ceive educational benefits.” Bd.
Educ.
variety
school district must “use a
of as
Hendrick Hudson Cent. Sch. Dist. v.
sessment
strategies
gather
tools and
176, 206-07,
Rowley, 458 U.S.
102 S.Ct.
functional,
relevant
developmental, and ac
(1982).
3034,
A specific learning disability a child has a ... parents argue C.M.’s the District a local agency educational shall not be procedural requirements violated the required to take into consideration wheth the IDEA properly because it failed to er a discrepancy child has a severe ... incorporate C.M.’s RTI data into may use a if [and] determines scientific, initial evaluation and it responds failed to the child research- IDEA respect of the evalua- violate part as a intervention based P., RTI data and the 2007 Assessment. held Michael We procedures”). tion of Education Department Hawaii se- by using only the the IDEA violated permitting discrepancy model without IDEA
vere District violated the model. response to intervention failing use of the to ensure that data was at carefully considered documented failing IEP team and to furnish the entire Here, District had the although the data, thereby making with the choice, discrepancy mod it used the severe *11 con give unable to informed To the initial evaluation. el for C.M.’s sent for both the initial evaluation and the solely it used argues District extent the education services C.M. received. model, District discrepancy the severe interpreting “In evaluation data for the the IDEA. Id. Howev would have violated determining if a child is purpose [both] of er, that the District the record reflects disability ... and the edu- a child with a tools, only variety of assessment used child, each public cational needs of the corrob RTI data to it also used C.M.’s but upon must information from agency [d]raw Eligi orate the 2007 Assessment. sources, variety including aptitude and of that his “learn bility Summary form noted tests, parent input, and teach- achievement by other corroborated ing problem [was] recommendations, as informa- er as well Psychologist data.” School assessment condition, physical child’s tion about the testified, referenc Gargiulo Patrick while background, adaptive social or cultural form, noted that the ing that that “[w]e [ejnsure behavior; and that information in response participating had been Student is docu- obtained all these sources from intervention,” RTI data and that carefully considered.’’ 34 mented and Thus, the corroborating data. was the added). 300.306(c)(1) (emphasis § C.F.R. tools, variety of used a properly District a vari- argues upon District it drew The RTI data. including C.M.’s assessment the documenta- ety of sources and ensured information. consideration of all that the IEP tion and parents argue The noted, upon have the District drew RTI data As we required to review the team was sources, evaluation, variety including citing 20 a of the initial part as 1414(c)(1). However, the record shows provides § That section data. U.S.C. (if ensure that the RTI data District failed to an initial evaluation part “[a]s carefully considered documented and any reevalua was appropriate) part and as Although C.M.’s section, entire IEP team. IEP Team and tion under Summary form noted corrobora- Eligibility appropri qualified professionals, other data, directs, also tion of his RTI the form ate, existing evaluation data shall review The District child, class “Attach documentation.” including ... current on the attach or otherwise share with room-based, local, to failed to or State assessments” any RTI documentation. data, IEP team any, if are entire “identify what additional that the documenta- Dr. testified eligibility or other Sassone needed” to determine attached was that should have been “if ne tion qualifier appropriate,” The needs. notes that meeting statutory requirement SST express gates However, an email already received. part data as a existing review evaluation District staff to both which she instructed therefore con the initial evaluation. We missing RTI documentation attach the proeedurally did not clude that the District cop- regulation require only her with does a state- provide the form and better ment, Eligibility Summary and the form meeting notes conflicts with ies of the SST does a statement that the determi- testimony. her 300.306, § nation in accordance with is Additionally, “[u]pon completion of the 300.311(a)(2). § satisfy As administration and other evaluation meas- 300.311(a)(7), § provides the form state- ures, evaluation copy report in RTI participated ments that C.M. of determination of eli- the documentation there was corroboration with other gibility given parent.” shall be to the data, provides assessment and it a state- 1414(b)(4)(B); §§ accord 34 C.F.R. U.S.C. covering ment all documentation of which 300.306(a)(2)(and § “at the par- no cost to However, were notified. it ent”). The “documentation of the determi- does not include a statement of the in- eligibility” nation of must contain a num- strategies structional used and the stu- particular ber of statements. The first dent-centered data collected.5 relevant statement is basis for mak- “[t]he 300.311(a)(7) argues District determination, ing including an assur- only if RTI applicable was used to deter- ance that the determination has been made eligibility, mine C.M.’s it did not use an 300.306(c)(1).” in accordance with *12 RTI method to determine eligibili- 300.311(a)(2). § C.F.R. The second rele- ty, and neither of the formal evaluations comes play vant statement into the “[i]f However, relied on the RTI data. the in participated process child has a that any authority District fails to cite to estab- scientific, response assesses the child’s to 300.311(a)(7) § lishing that is limited to requires research-based intervention” and when RTI eligibili- was used to determine a statement of instructional strate- “[t]he ty, regulation and the a conditions state- gies used and the student-centered data ment if in participated “process the child a collected; and that [t]he documentation child,” that process assesses the not a that parents the child’s were notified about” eligibility. determines the child’s That policies, strategies certain state to increase participated C.M. RTI assessments and rate, learning parent’s the child’s and the the discrepancy severe model was corrobo- right request an evaluation. 34 C.F.R. by rated data is sufficient to 300.311(a)(7). § deem the data applicable regulation. to the § The District that argues first 300.311 Dr. say Sassone testified that she cannot statement, only a requires not documenta- participated that the RTI that C.M. tion, scientific, and that it provided such a statement. would be the as the same re- 1414(b)(1) requires position § 5. The that require- dissent notes conflicts with the additional agency provide an educational the ment that this documentation of determina- disability of a child with notice of the evalua- eligibility tion of include a statement of the procedures agency "proposes tion the to con- strategies "instructional used and the stu- argues agen- duct.” Id. The dissent that the dent-centered data if collected” the child has cy proposed never to use the RTI assessment "participated in a that assesses the eligibility to determine C.M.'s ed- scientific, response child’s research-based services, ucation and therefore the district 300.311(a)(7). § intervention.” 34 C.F.R. obligated notify parents. was not C.M.'s reading The most natural of the statute is However, argument ignores wholly the 1414(b)(1) § requires agency that separate requirement imposed provide parent regarding notice to the 1414(b)(4). 1414(b)(4), § § Under "docu- child, tests it intends to conduct on a eligibility mentation of determination shall 1414(b)(4) § requires agency inform given parent” upon completion be to the parent of the of those tests. results Moreover, the evaluation. Id. the dissent’s Finally, requires pa the IDEA informed referenced intervention search-based conducting an initial Eligi- rental consent before But the fact that regulation. providing special ed tracks the evaluation and before otherwise bility Summary form a ucation services to child. U.S.C. regulation undermines requirements 1414(a)(l)(D)(i). Moreover, The school district she testified testimony. her procedural safeguards must also establish Eligibility information on opportunity par for the “[a]n information re- Summary “provide[s] form disability of a child to examine making in ... ents with was used lated to what to such child.” 20 relating either all records Had the District determination.” 1415(b)(1)(A). at- Examination statement or U.S.C. required provided is critical to the devel as the form records RTI documentation tached the J., including opment of an IEP. Amanda team, instructed, IEP the entire J., In Amanda parents argued at had all the infor- 892. would have parents, denied a FAPE because that Amanda was they proeedural- needed to make mation all of her provided were not eligibility determination. ly valid records, school some of which indicated addition, that underachieve- to ensure Id. at may that she have autism. appropriate lack of is not due to a ment Because IEP which addresses the “[a]n consider, instruction, group “the must unique needs of the child cannot be devel ... [d]ata-based of the evaluation part familiar oped people if those who are most assessments of repeated documentation of or with the child’s needs are not involved intervals, re- achievement at reasonable Id. at 892. informed,” agreed. fully of student flecting formal assessment data, instruction, complete RTI his which was Without C.M.’s progress during give unable to informed con- parents.” were provided to the child’s *13 300.309(b)(2). initial evaluation and the sent for both the C.F.R. education services he received. special argues provision The District that this all request writing not parents His did to RTI was not used inapplicable because relating to until the middle records C.M. again but the District eligibility, determine However, the Dis- grade year. his third authority. provi- any cite to This fails to duty to share C.M.’s procedural trict had a appear to call for particularly sion does not early parents his as RTI data with only if that data was used to RTI data to grade year, sought when it C.M.’s first contrary, eligibility. To the be- determine ini- consent for the obtain their informed is meant to ensure provision cause this a The District also had tial evaluation. not due to a lack that underachievement is the IEP team procedural duty provide to instruction, any it calls for appropriate 18, 2007, April at the with the RTI data repeated assess- any documentation making eligibility the determi- meeting for performed ments. The RTI assessments violated the The District therefore nation. here, would have been beneficial on C.M. the IDEA not safeguards of procedural met given that the District staff especially opportunity with an providing parents the year discuss C.M.’s per three times to relating to C.M. to examine all records data. We there- progress based on that procedural- fore conclude that the District B by failing IDEA to ly violated the Dis Having RTI data determined IEP with C.M.’s the entire team the IDEA violated eligibility procedurally his trict purpose making the com- parents with his providing the determination. data, proce- RTI and because not all IEP team píete changes made no to his edu- FAPE, data, deny program. dural violations a child a cational the RTI Without R.B., F.B. Napa Valley struggling decipher ex. rel. were Unified (9th Dist., Cir.2007), deficits, unique Sch. his unaware of the extent consider whether the violation “re- not meaningfully now to which he was benefit- ISP, opportu- ting in the loss of educational sult[ed] from the and thus unable to nity, seriously infringe[d] properly changes or advocate for to his IEP. opportunity participate in the IEP for- therefore We conclude the District’s depriva- mulation or ... a process, procedural prevented par- caused violations N.B., benefits,” meaningfully tion of educational 541 ents from participating Therefore, F.3d at 1207. IEP process. the District de- nied a FAPE. C.M. Although the other members of C.M.’s IEP team familiar were with his C they participated data because in his Because we hold that the District failed Assessment meetings Wall three times comply with procedures mandated year, were unfamiliar with the by the IDEA and that this failure denied and, importantly, picture data more FAPE, C.M. we need not address the painted data C.M.’s deficits and his question of whether resulting IEPs progress during kindergarten through his reasonably were calculated to enable C.M. grade years. third C.M.’s DIBELS meas to receive educational benefits. See ures on Initial Fluency, Sound Letter J., Amanda 267 F.3d at Nor do we Fluency, Naming and Nonsense Word need to reach whether the District other Fluency prior were below benchmark procedurally wise violated the IDEA or evaluation, his initial but his measure on whether the 2007 Assessment was other Segmentation Phoneme Fluency was at appropriate. wise benchmark. Based on the 2007 Assess results, ment IEP team determined D eligible C.M. was education ser upon phonological vices based processing may School districts be ordered to reim- disorder. This result conflicts burse the of a who his child has been score, Segmentation Phoneme Fluency es a FAPE private denied for the cost of pecially 1412(a)(10)(C)(ii); his above benchmark Phoneme instruction. 20 U.S.C. *14 300.148(c). Segmentation Fluency score and below During see also 34 C.F.R. benchmark Reading Fluency court, Oral score at the hearing OAH and at the district the of grade year. end his first the parents sought Without reimbursement for complete data, presentation of the RTI the audiology processing and assess- parents ments, discrepancy were unaware of the therapy, private sound-based and thus properly reading programs unable to consider they provided that particular processing disorder and C.M. at their own expense. Both the ALJ the instructional strategies he needed. and the district court determined that the Also, at the time of parents the first annual IEP were not entitled to reimburse- meeting grade year, in C.M.’s they second his ment because had concluded that the progress data showed that his in the District had not denied C.M. a FAPE. language receiving otherwise, arts had declined after Because conclude we re- nearly education services for one mand to the district court for reconsidera- year. lack Despite progress, his of the tion of this issue.
857 relief, jurisdiction.” it lacks effective or III Cal., 100 F.3d at Pub. Utils. Comm’n of of the district contest three parents The longer no 1458. Since the court could two to the first rulings related court’s deny reevalu grant full reimbursement or proceedings. OAH ation, parents the issues were moot. The argue they requested that reme also A Yet, still dy declaratory relief. there must con properly court The district controversy” an “actual be for reim claim cluded declaratory relief. See 28 U.S.C. issue cost of Dr. Guterman’s of the bursement argue further parents § 2201. The In the first OAH was moot. evaluation by the District performed the reevaluation the District the ALJ ordered proceeding, reevaluation,” not the same but “was for half of the parents to reimburse sought record shows that the reevaluation per Dr. evaluation cost of Guterman’s proceeding was by the District the first a reevalua complete District to mitted the the out-of-date update an evaluation to parents argue tion of C.M. C.M.’s 2010, By the Dis 2007 June Assessment. reducing the reimbursement ALJ erred Finally, that evaluation. completed trict The dis authorizing the reevaluation. argue that the reevaluation parents are that both issues trict court determined they claim that the because issue is live only paid the District not moot because § 504 [of District’s “conduct violated cost, but Dr. evaluation half of Guterman’s But, argument is Rehabilitation Act].” 2, 2011, voluntarily paid September on § 504 claims were irrelevant because their Additionally, by June half as well. other moot. not deemed 2010, completed its 24, District had reevaluation of C.M. argue that The further jurisdiction of federal
“The
claims
consequences prevent the
collateral
of a ‘case
on the existence
depends
courts
exception to
being
from
moot. One
III
Article
controversy’
or
under
a claimant
doctrine exists where
mootness
Cal.
Pub. Utils. Comm’n
Constitution.”
legal
conse
“collateral
would suffer
(9th
1451,
FERC,
F.3d
1458
Cir.
were al
appealed
if the action
quences”
omitted).
1996) (internal
marks
quotation
Dist.
Doe v. Madison Sch.
lowed to stand.
controversy
presented
justiciable
No
Cir.1999).
(9th
789,
321, 177 F.3d
No.
sought
adjudicat
question
to be
where
argument on their
their
The
base
sub
by developments
mooted
ed has been
party attor
prevailing
recover
attempt to
Church
filing
complaint.
sequent
However,
existence
neys’
“[t]he
fees.
States, 506
Scientology Cal. v. United
... does not re
fees claim
attorneys’
12,
447,
issues that C “likely because the District employ correctly district court deter The delay similar tactics and seek reevaluation mined two of the three claims raised discourage making request an IEE be proceeding the second OAH were time- it can cause moot such claims at will.” In that proceeding, parents’ barred. However, each reevaluation that could lead first three claims related to the District’s an IEE request unique will be based on timely identify failure to C.M. as a student circumstances, just as the 2007 Assess learning disability with a and its failure to unique ment was based on circumstances. timely develop its Assessment Plan. The Thus, the district court did not err in ALJ dismissed those claims that arose be determining capable the claims are not 16, 2007, April they fore because were repetition and otherwise moot. limitations, two-year outside the statute of B allege any excep did not tion to the statute. The district court properly district court con agreed that the claims were time cluded that the barred parents’ process rights due by change despite were not violated contentions that an the word ing presented. of the issue exception to the statute applied. argu- argued 6. The raise three appeal. additional were for the first time on Garber, pertain ments that to the alteration of issues Cold Mountain v. (9th Cir.2004). by the ALJs that we will not consider because *16 Dist., B.S., 1493, No. 1 v. 82 F.3d pro- due Sch. limitations for statute of The Cir.1996) (where (9th precludes findings are based on complaints California cess years than two occurred more regarding credibility claims that of determinations request for filing to the date prior witnesses, greater even deference is due 56505(l); § Cal. Educ.Code process. due R.B., findings); the trial court’s 1415(f)(3)(c). The statute § 20 U.S.C. (the amount of deference accorded at 942 was parent “the apply not where does findings increase hearing officer’s process requesting from the due prevented and care- “thorough where the officer is (1) following: hearing due to either ful”). Moreover, testimony Jones’s is cor- by the local misrepresentations Specific by testimony Principal roborated that it had solved agency educational Sassone, Maddux and Dr. as well as the pro- basis of the due forming the problem signed Plan that E.M. on Feb- Assessment (2) withholding The hearing request. cess 20, ruary 2007: by the local educational of information a being supplied You are written state- parent required that was agency from the Rights ment of Parent which summa- par- to the part provided to be under Ed- apply Special rizes the laws that 56505(i). ent.” Cal. Educ.Code ucation and describes the First, the Dis- parents argue local resolving possible disputes through procedural from them a trict withheld mediation, dispute resolution alternative notice, was which the District safeguards hearing by conducted services and/or 300.504 to make required 34 C.F.R. Depart- authorized the State persons them, latest, upon at the available to you any If have ment of Education.... on initial evaluation referral for C.M.’s your letter or questions regarding this 20, claim February your contact rights parent, please as a a notice until the they did not receive such teacher, or principal, child’s the school 18, meeting April on 2007. How- first IEP at Jane Jones 283-6231. ever, correctly deter- the district otherwise. the record reveals mined Second, argue that the stat- 20, February testified that on 1ST Jones the District apply ute does not because 2007, plan, “[a]long with the assessment Although RTI withheld C.M.’s data. copy given have been would [E.M.] procedur- that the District have concluded safeguards.” Al- parents’ procedural her by withholding ally violated the IDEA “present not have a rec- though Jones did data, proce- RTI we find docu- giving E.M. exact ollection” at the earliest as violation occurred dural testimony ment, found the ALJ Jones’s 2007, 20, the District February when Rule of Evidence credible under Federal informed con- to obtain the sought (“Evidence person’s of a habit or par- initial evaluation. sent may ad- practice routine be organization’s receipt of the fail to how ents demonstrate particular occa- prove mitted to that on data, matter the notice of and for that organization or acted person sion the February rather procedural safeguards, prac- the habit or routine accordance with caused them to file April than would have tice.”). more credi- The ALJ found Jones earlier. We process complaint due were E.M. on what documents ble than that the district court conclude therefore met, it and was received when that the claims that deciding not err in did court to defer to erroneous for the district time were April arose before credibility finding where the ALJ’s Seattle barred. thorough and careful. decision was
860 Department by of Education the
IV abided stay regulatory investiga- mandate to the properly The dismissed district process tion the hearing while due was parents’ against Depart- the the claims 300.152(c)(1) (“If § pending. 34 C.F.R. a ment of Education. the first two law- complaint written is that received is also suits, brought against parents the claims subject process the of a due ... hearing failing for Department the of Education any part the State must set aside properly proceedings oversee the OAH complaint being that in addressed the staying investigation. for In the and its process hearing due until the conclusion of lawsuit, parents’ second the first amended hearing.”). parents argue the The the is- complaint against claims also included the sues in and complaint process the due Department of Education under the hearing they were not the same because IDEA. all The district court dismissed in delay seeking raised the District’s due against Department the claims Edu- process after Department of Education 2, 2010, in cation both cases its June investigation But was closed. this is with- 3, 2011, March orders. process hearing out merit. The due was argue they can parents The state focused on parents’ request for an IEE against Department a claim of Edu and whether the District responsible was duty cation for of their “breach to ensure funding question necessarily for it. That procedural safeguards IDEA and funda depended compliance on the District’s mental hearings.” fairness OAH The IDEA in responding to the parents dispute the ALJs’ alteration of request.7 barring issues and of certain witness testi argue they However, mony. the district court deter can against Department state a claim Department mined that the of Education of Education for breach of its duties under authority OAH, has no over the and that 1412(a) 1415(a) §§ of the IDEA. How determination was affirmed this Court ever, the district court correctly deter again. and will not be reviewed M.M. provisions mined that those do not provide Dist.,
Lafayette
1082,
Sch.
private
a
right of action. Section 1412
(9th Cir.2012) (“[The Department of Edu
discusses the policies
procedures
authority
does not have
or respon
cation]
required
place
state is
to have in
in order
sibility
directly supervise
or review each
eligible
the state to be
for assistance
decision made
an
in a
process
ALJ
due
IDEA,
under the
1415 is a mandate
hearing.”).
for a
procedural
state to establish
safe
parents argue they
guards.
can state
private
Neither section contains a
1415(f)
against
action,
a claim
Department
right
of Edu
and indeed
specif
staying
investigation
ically
cation for
its
requires complaints
because
be heard
IDEA provides
private
them a
right
impartial
due
hearing and then
However,
action.
provides
the district court cor
an express right
appeal
rectly
any
dismissed this claim because the
review of
administrative decision.8
argument
7. The
also raise a new
8. The
claim that the Cannon v. Uni
677,
Department
required
versity Chicago,
of Education was
441 U.S.
688 n.
closing
(1979),
address corrective action before
S.Ct.
leged injuries that could be redressed to
*18
V
any
by the IDEA’S administrative
degree
remedies[,] ... exhaustion
procedures and
properly dismissed
The district court
20
required.”
of those remedies is
Accord
§
claims under
504
retaliation
parents’
the
1415(i).
parents argue
§
The
U.S.C.
(1)
pertaining
Act
of the Rehabilitation
the
erred
exhaustion is not
because
stay
Depart-
the
request to
the District’s
argu-
for this claim and bases their
needed
investigation of the
of Education’s
ment
case,
Payne.
on
In that
we clarified
ment
(2) the District’s
complaint; and
parents’
provision ap-
exhaustion
that the IDEA’S
However,
meetings.
IEP
use of facilitated
sought
in
relief
plies only
cases where the
by
explicitly
court erred
not
the district
Payne,
IDEA.
653
is available under the
claim
parents’
retaliatin
addressing the
Thus,
go on to
parents
F.3d at 871.
the
District’s effort to reeval-
pertaining to the
claim,
conclusively
“Educational services
request.
IEE
parents’
uate
after the
C.M.
the IDEA’S administra-
through
available
stayed
fail to brief the
De
parents
The
remedy the effect of
tive
could not
investigation theo
partment of Education
However,
meetings.
facilitated IEP team
ry, and it is therefore waived.9 United
§ 504.”
are available under
remedies
1125,
Williamson,
F.3d
1137-
v.
439
States
(9th Cir.2006) (issues
raised
brief but
38
However,
Payne
we have clarified
argument are aban
supported by
not
con
that to determine what
explained
28(a)(9)(A).
doned);
R.App.
Fed.
P.
We
IDEA,
under the
stitutes a claim for relief
in turn.
remaining two claims
address the
(1)
seeks
plaintiff
we “consider whether
equiva
monetary relief as the ‘functional
A
under
remedy
of a
available
lent’
order, the district court
Prior to its final
(2)
IDEA,
injunctive relief to
‘prospective
504 retaliation
dismissed
placement
alter an IEP or the educational
the facilitated
claim that the District used
(3)
student,’ or
‘to enforce
of a disabled
par-
meetings coercively
IEP
because
of a
a result of a denial’
rights that arise as
at the
failed to exhaust
the issue
ents
Schs., 679
Portland Pub.
FAPE.” C.O. v.
con-
hearing.
administrative
Cir.2012)
(9th
1162,
(quoting
F.3d
1168
in error.
the dismissal was
tend
875). Here,
par
at
Payne, 653 F.3d
District,
functional
claim is the
ents’ retaliation
Robb v. Bethel School
Under
(9th
claim un
Cir.2002),
procedural
of a
defect
equivalent
over
308 F.3d
claim violation
they
IDEA where
Dis
der the
Payne v. Peninsula School
ruled
1414(d)(l)(B)(iv)
Cir.2011) (over
(9th
concerning the indi
trict,
§of
ing to provide with his com- plete RTI assessment data and that B provided District C.M. with a FAPE. We parents argue the dis remand for reconsideration both the trict it court erred because “did not re reimbursement due the for his private attorneys’ solve or address the retalia instruction and their [reevaluation] award, Indeed, fees and we remand for consider- tion claim.” the district court *19 ation of the 504 reevaluation meetings dismissed the facilitated IEP retaliation claim. We otherwise affirm the stayed Department claim and the of Edu judgment of the party district court. Each investigation cation claim but not the re shall bear its or their appeal. own costs on evaluation claim. Although the district granted the District’s motion for PART; AFFIRMED IN REVERSED summary judgment, which included the PART; IN REMANDED.
question any whether the District had ill RAWLINSON, Judge, Circuit reevaluation, in requesting motive dissenting: agree by that the district court erred explicitly addressing their 504 claim. I respectfully majori- dissent from the Additionally, assert ty’s holding Lafayette School “[discovery was still pending on CM’s re District failed to M.M. a Ap- Free taliation claims” when the district court Education, propriate Public and from the final issued its order. therefore re We of the attorney’s reversal award of fees. mand the issue to the district Giving appropriate court for it deference to the find- ings to consider the claim in the first instance. the state Administrative Law (ALJ),
Judge I procedur- conclude that no al violation of the Individuals with Disabil- VI (IDEA) ities Education Act was commit- by ted the School District. Neither do I 1415(i)(3)(B), Under 20 U.S.C. agree that the district court failed to ad- parents sought attorneys’ fees at the dis- brought pursuant dress Plaintiffs’s claim prevailing trict court for on the IEE reim- to Section 504 of the Rehabilitation Act. bursement issue—the were award- ed in the first OAH proceeding for $2400 My disagreement majority pri- with the the cost of the IEE and in the second $800 marily differing stems from our view of the lawsuit for the fee Dr. charged Guterman (RTI) Response-to-Intervention model meeting. attend the March 2009 IEP by the utilized School District to measure Ultimately, the district court reduced the achievement levels of all students in the parents’ attorneys’ fees award based on school. It undisputed that these assess- their degree limited of success and for ment tools were administered to all stu- unreasonably protracting the final resolu- identify dents to might those who benefit controversy. tion of the light of our assistance, from extra and were NOT a FAPE, reversal as to C.M.’s we remand identify mechanism used to students issue for reconsideration special Nevertheless, the dis- need of education. trict court. majority holds that failure to provide p. on at these to C.M.’s result- achievement level. See id. 5. At test results IDEA. the beginning year, every of each school ed a violation battery student is administered a explored this matter detail ALJ screening From assessments. these as- eleven-day in which following hearing sessments, prepared a card is for each he We consis- actively participated. have level, listing grade student the student’s tently expertise admin- recognized scores, information, biographical test judges routinely preside istrative who results, screening and classroom observa- addressing over hearings adequacy purpose tions. See of this id. plans adopted education and ad- provide early model “is to and effective ministered local school districts. The requiring intervention to students addi- specialized judges decisions of these are support....” During tional Id. month to substantial deference. In J.W. entitled October, the school held assessment ses- Dist., v. Fresno School Unified grade During sions for each level. these (9th Cir.2010), we reminded our- placed assessment were sessions students selves that we must not substitute our into one categories: of three Intensive “own of sound policy notions educational (those performing well students below for those of the school authorities” when (those level), grade students Strategic per- (cita- considering cases under the IDEA forming grade within the level curriculum omitted). specifically tion We noted *20 range, support), but in need of additional is increased deference afforded the deci- (those perform- and Benchmark students hearing findings sion of a officer when his level). ing grade at or id. pp. above See at (citation “are thorough and careful.” Id. “comprised 5-6. are then Classes of omitted). generally findings We consider of category.” blend students from each “thorough to be and careful” when p. Id. at 5. in hearing participates questioning officer witnesses, pens containing description, apparent a decision From this it is that a complete recitation of the facts and a the RTI were for the purpose assessments comprehensive analysis determining makeup of the Id. of of the issues. class- (citation omitted); at assessing any 40-41 see L.M. rooms rather than for also child Dist., Capistrano eligibility Sch. F.3d for education special 556 services. Unified (9th (de- Cir.2009), Indeed, part as is 908 amended RTI assessment termining twenty-page parcel general that a met of District’s opinion the School edu- careful”). “thorough system. p. cation at 6. standard See id. These as- easily cri- sessments three times place ALJ’s decision meets these took each year teria. school to monitor educational students, just progress all those detailed, comprehensive, forty-eight special need of education. See id. It was decision, rejected page the ALJ claim only after raised regarding concerns were that District was to required the School progress C.M.’s lack of academic in the incorporate part the RTI documents as area of arts that C.M. re- language was to assessment determine testing eligibili- ferred for to determine his special eligibility C.M.’s for education ser- ty special services. for education See id. Decision, p. vices. The ALJ See ALJ 18. p. at testimony described credible from the school, distinction principal explained at C.M.’s who The ALJ made a clear be- to assign that RTI use RTI as a means program primarily the school’s is tween assign respective used to students to based students their classrooms teachers Program] RTI as an assessment tool ized Education Team and and use of the eligibility special for edu- qualified professionals, appro- to determine other explained that cation services. ALJ shall— priate, option using school districts have the (A) existing on review data the child eligibility spe- RTI model to determine for services, using cial education or a “stu- added). § 1414(c)(l)(A)(emphasis 20 U.S.C. ability student’s actual dent’s versus important provision It is that this is discrepancy p. achievement model.” Id. at tethered to the evaluation and assess n. 10. The noted that it was 19 and ALJ responsible ments conducted the team Lafayette School Dis- undisputed determining for eligibility student’s “ability trict used the to achievement dis- special for education services. Because crepancy eligi- model” to determine C.M.’s RTI the record reflects assess bility special for education services. Id. n. ments were not used determine C.M.’s supports 10. The record this determina- services, eligibility special for education majority acknowledges, tion. As the provision support does not the ma assessments are based on the Slosson Oral jority’s conclusion that the School District Reading Dynamic Test and the Indicators required was the RTI data to Early Literacy of Basic Skills Test. See IDEA, especial under the However, Majority Opinion, p. 6. the as- ly considering statutory lan eligibil- sessment used determine C.M.’s guage tempered by inclusion of the ity special education services were the phrase appropriate,” thereby “if reflect reading III compre- Woodcock Johnson ing deference to the discretion of the Comprehensive hension test and the Test school officials. See Our Children’s Phonological Processing. Eligi- EPA, Earth Found. v. United States bility Summary documenting form his eli- (9th Cir.2008) (noting F.3d gibility education services did appropriate” use of “if sig the statute NOT list the RTI the assessments used *21 discretion); a grant nifies of see also eligibility to make the determination of or Godinez-Ortiz, States v. United 563 F.3d eligi- to corroborate the determination of (9th Cir.2009) 1029 (recognizing bility. that governing because the statute pro deferring Rather than to the ALJ’s con- vided for a “if hearing, appropriate,” the issue, majori- sidered resolution of this the occur); hearing might never K.D. v. Hawaii ty upon embarks a de novo review of the Educ., pt. De 1119 of record to contrary reach conclusion (9th Cir.2011) (describing “if appropriate” that of the ALJ and at odds with the “qualifier”). as a This same discretion record. ary language Lafayette vested the School noted, As the district court Plaintiffs’ District with discretion to determine 1414(c) § reliance on 20 is U.S.C. mis- which assessment should be administered placed. That in provides pertinent statute and, correspondingly, which data should part: evaluating be reviewed in for spe C.M. requirements Additional for evalua- Exercising cial education services. its
tion and reevaluations discretion, statutory the School District
(1) existing Review of evaluation data elected NOT to use the RTI as an as part (if ap- As of an initial evaluation Consequently, legal sessment model. no ) propriate part any obligation and as of reevalua- provide arose to review or section, conjunction tion under this RTI data in [Individual- with the evalúa- edu- mined that C.M. offered insufficient evi- eligibility tion of retaliation. See id. dence cation services. un- fares no better argument agreed
Plaintiffs’ with the ALJ’s district 1414(b), § re- issue, which provisions analysis of the and added that der notify the agency to quires previously the educational this issue had been addressed description of evaluation resolving in the order Defendants’ court’s agency “pro- procedures explained the educational Motion to The court Dismiss. Because the School poses to conduct.” was addressed as to the issue propose not to utilize the addressing District did in its order the motion to CDE eligibility spe- However, model to evaluate C.M.’s the court held that the dismiss. services, provision this did cial education reasoning “same holds true for the Dis- RTI data. mandate notification of the p. trict.” Id. at 46. The school district sum, majority’s conclusion that the governing acted with the compliance RTI data upon District relied regulation, negated retaliatory School which mo- that data to required failing and was Rather than tive. See id. ad- proce- issue, the IDEA part dress the the district court factual requirements ignores the actually dural addressed it twice. The Plaintiffs’ findings made the ALJ and the district contrary lacks merit. allegation court, language from the and deviates brought under the IDEA are Cases the IDEA. emotions sometimes run complicated, and disagree
I the district court also completely It understandable that high. explicitly address Plaintiffs’ claim failed disability of a child with a claim under the Rehabilitation Act. This no stone unturned in their would leave encompassed within Plaintiffs’ asser- was legal to ensure that their child’s effort that the school district’s motives for However, tion fully protected. are rights were vin- seeking a reevaluation C.M. case, I and the agree ALJ ad- explicitly dictive. The district court Lafayette judge district court claim under a section titled dressed this require- complied with the School District Unlawfully the District Retaliat- “Whether I of the IDEA. would affirm ments Complaint.” a Due Process by filing ed entirety. judgment in its district court Opinion, p. 45. The dis- District Court
trict court restated Plaintiffs’ contention retaliatory engaged
that “the District plaintiffs in violation of against
behavior *22 of the Rehabilitation Act to intimi- date, discourage Plaintiffs punish, and BRADFORD, Jr., Petitioner- Robert (inter- asserting rights....” from their Id. Appellant, omitted). marks The dis- quotation nal finding from the trict court referenced the complaint filed ALJ that the due RAILROAD COM UNION PACIFIC by the school district did not influence PANY, corporation, a Delaware Department decision California Respondent-Appellee. (CDE) Plaintiffs’ to dismiss
Education No. 12-16469. Rather, complaint. the CDE compliance Appeals, United States Court Complaint Plaintiffs’ “on its own dismissed Ninth Circuit. Accordingly, the ALJ deter- volition.” Id.