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April 3, 2003


The opinion of the court was delivered by: Saundra Brown Armstrong, United States District Judge


Plaintiff Katherine G. ("Plaintiff" or "Katherine"), by and through her guardian ad litem, Cynthia G., brings the instant action pursuant to the Individuals with Disabilities Education Act (the "IDEA"), 20 U.S.C. § 1400 et seq., against the Kentfield School District and the Marin County Office of Education (collectively, "Defendants" or the "District"), seeking review of portions of a special education administrative hearing decision. The District has filed a counterclaim against Katherine also pursuant to the IDEA, seeking review of different portions of the decision.

The parties are presently before the Court on Plaintiffs Motion for Summary Judgment ("Plaintiffs Motion") and Defendants' Cross-motion for Summary Judgment on Plaintiffs Claim ("Defendants' Cross-motion"), which relate to Katherine's claim against the District, and on Defendants' Motion for Summary Judgment on Their Counterclaim ("Defendants' Motion") and Plaintiffs Cross-motion for Summary Judgment ("Plaintiffs Cross-motion"), which relate to the District's counterclaim against Katherine.*fn1 Having read and considered the papers submitted and being fully informed, the Court DENIES Plaintiff's Motion and GRANTS the District's Cross-motion, and DENIES the District's Motion and GRANTS Plaintiff's Cross-motion.*fn2


A. Factual Summary

Katherine is a minor child who resides in the Kentfield School District, which lies in Marin County, California. In or around 1998, Katherine, who was then three years old, was diagnosed with language disorder. At her initial Individualized Education Plan ("IEP") meeting on June 19, 1998, the IEP team found Katherine eligible for special education services under the IDEA. In September 1998, Katherine was placed in a special day pre-school class (the "SDC") taught by Clara Yourman, a credentialed special day class teacher and certified speech and language pathologist, at Marindale. Katherine attended Ms. Yourman's class for five hours per day (8:00 a.m. to 1:00 p.m.), four days per week (Tuesday through Friday), during the entire 1998-1999 school year, as well as the 1999-2000 school year.

In March 1999, in preparation for the upcoming annual IEP meeting, Ms. Yourman administered several tests to Katherine to assess her in the areas of receptive and expressive language "to determine her current functioning, goals and placement." The IEP team subsequently convened in May 1999. At the meeting, the team reviewed Ms. Yourman's speech and language assessment and Katherine's goals and objectives, as written in the IEP. The team recommended that Katherine remain in Ms. Yourman's SDC for the remainder of the 1999-2000 school year, a continuation of Katherine's previous goals and objectives (none of which had been achieved), direct occupational therapy one time each week, and a 19-day extended school year program in Ms. Yourman's SDC for the communicatively handicapped.*fn3 In August 1999, Katherine's parents contracted with Dr. Ilene Lee, a psychologist in private practice, to provide behavioral consultation services for the family.

In September 1999, Katherine began attending the "after-school" program at ABC Academy ("ABC") three days each week for a total of 12 of 15 hours each week during the 1999-2000 school year. ABC was a private preschool located outside Kentfield that served children from preschool through the second grade. Katherine was enrolled at ABC Academy for "day care" purposes and to provide her with opportunities to interact with nondisabled, same-age peers. Katherine's "after-school" program included nondisabled preschool-age children. Katherine also went on to attend ABC's summer school program, taught by Jamaica Stevens, for six weeks (between three and four days each week for a total of 12 to 15 hours each week) during the summer of 2000.

In September 1999, Katherine's parents contacted Paula Cline from Kentfield School District ("Kentfield") and inquired whether Kentfield would provide transportation from Marindale to ABC. Their request was denied.

Beginning in either February or March 2000, Katherine's parents sought private speech and language therapy services at the recommendation of Dr. Lee. Two different speech and language pathologists, Janet Rizzi and, then, Teri-Lyn Cousley, provided a number of therapy sessions for Katherine.

In the spring of 2000, Cynthia G. contacted Ms. Cline to discuss transportation for Katherine from Marindale to her afternoon placement at ABC and to discuss whether Kentfield would provide an aide to work with Katherine at ABC. On March 6, 2000, an IEP meeting was convened to discuss Ms. G.'s requests. The IEP agreed that the Early Intervention Program ("EIP") staff would take "an informal look" at Katherine's program at ABC to determine if she required an aide at ABC. After observation of Katherine at ABC by members of the EIP staff, and a subsequent IEP meeting in April 2000, the IEP team denied both of Ms. G's requests — an aide at ABC and transportation services.

Also in April 2000, Ms. Yourman assessed Katherine in preparation for the upcoming annual IEP meeting. Ms. Yourman administered a number of tests, which indicated that Katherine's expressive language had improved in her SDC over the past year, however, the tests also indicated that Katherine was not quite ready for participation in a full inclusion placement in a regular kindergarten and that she required a structured environment for further improvement. Katherine's parents sent a letter dated April 25, 2000, about one week before Katherine's annual IEP meeting was scheduled to convene, to the superintendent of Kentfield. The letter expressed, among other things, their concern that placing Katherine in a special day class would not be in her best interests and that the G.'s were seeking to have Katherine placed in the regular kindergarten classroom at Bacich Elementary ("Bacich"), a Kentfield elementary school.

Katherine's annual IEP meeting convened on May 1, 2000, and again on May 25, 2000. The parties, however, failed to reach an agreement with regard to Katherine's placement for the 2000-2001 school year or the 2000 ESY. Katherine's parents were of the position that Katherine should be enrolled at Bacich during the 2000-2001 school year; for the 2000 ESY, they desired Katherine to be placed at ABC for six weeks, provided an aide, and provided speech therapy by Patricia Toboni, occupational therapy at ABC, and audio integration training. Kentfield's representatives, however, were apparently of the view that Katherine should remain in Ms. Yourman's SDC.

Over the summer, Katherine's parents procured private speech and language services, as well as "auditory integration training," and continued Katherine's placement at ABC. She did not attend any Kentfield program, nor did she receive any related services from Kentfield during the summer of 2000.

On August 7, 2000, Kentfield sent a letter to Katherine's parents regarding the proposed placement for the 2000-2001 school year. Kentfield offered placement in the morning, kindergarten special day class at Coleman Elementary School taught by an experienced and qualified special day class instructor, and an inclusion experience in the regular education kindergarten class at Bacich from 12:00 p.m. to 2:15 p.m. every day. In addition, Kentfield offered direct speech and language services, three sessions per week, thirty minutes per session; speech therapy consultations with a teacher, once every two weeks, thirty minutes; direct occupational therapy services, two sessions per week, thirty minutes per session; occupational therapy consultation with a teacher, sixty minutes per month; transportation services; Ms. Yourman's consultation with each of Katherine's teachers for a total of 15-30 minutes per week; and the current SDC teacher's consultation with the regular education teacher, 15-30 minutes per week. Katherine's parents rejected this proposed placement. They enrolled her instead at Trinity Lutheran School ("Trinity"), a private school, for the 2000-2001 school year and engaged private support services.

B. Procedural History

1. Due Process Hearing Before, and Decision by, SEHO Hearing Officer
In early June 2000, both Katherine and the District separately requested a due process hearing. Trevor Skarda, Hearing Officer (the "HO") for the California Special Education Hearing Office ("SEHO"), presided over the consolidated hearing. The hearing took place over the course of eleven days in August, September, and October 2000. The HO heard testimony from seventeen witnesses and considered extensive documentary evidence. The parties submitted closing memoranda, and the hearing was deemed closed as of December 12, 2000.

On January 5, 2001, the HO issued a 33-page written decision (the "Decision" or "Dec."). The HO found that the District failed to provide Katherine with a free appropriate public education ("FAPE") for the 1999-2000 school year and the 2000 ESY. (Dec. at 13-24, 32.)*fn4 Specifically, the HO found that the District committed a procedural violation of the IDEA by failing adequately to discuss with Katherine's parents opportunities for "mainstreaming" — placement in a regular academic setting. (Id. at 17.) This failure, the HO found, resulted in the loss of educational opportunity for Katherine, and therefore it constituted a denial of an FAPE. (Id.) The HO also found that Katherine's placement was "substantively" inappropriate because it was not designed to meet Katherine's unique needs, it was not reasonably calculated to provide her with some educational benefit, it did not comport with her IEP, and it was not provided in the least restrictive environment. (Id. at 17-24.)

But the HO also found that the District did offer Katherine an FAPE for the 2000-2001 school year. (Id. at 24-27, 32.) In particular, the HO reviewed the testimony of the witnesses at the hearing and concluded that a full inclusion placement, the alternative urged by Katherine's parents, even supplemented with appropriate aides and services, would provide Katherine with no educational benefit. (Id. at 24-27.) In light of this finding, the HO concluded that a full inclusion placement would not provide Katherine with an FAPE for the 2000-2001 school year, and therefore the District complied with its obligations under the IDEA. (Id. at 27.)

The HO ordered the District to reimburse Katherine's parents for one-half of the tuition they paid to ABC and Katherine's transportation costs, but he denied Katherine's request for reimbursement of expenditures for private speech and language therapy sessions, consultation services provided by Dr. Lee, occupational therapy services, and auditory integration training. (Id. at 28-32.) The HO also found that Katherine was not entitled to compensatory education services. (Id. at 32.) The HO apprised the parties that they had the right to appeal the Decision to a court of competent jurisdiction within 90 days of receipt of the Decision. (Id. at 33.)

2. Litigation in This Court

Katherine filed a Complaint against the District in this Court on April 4, 2001, seeking review of the HO's Decision pursuant to 20 U.S.C. § 1415(i)(2).*fn5 Katherine seeks an order that the HO's Decision be set aside; a declaration that the District denied her an FAPE for the 2000 ESY and the 2000-2001 school year, including the 2001 ESY, by failing to offer her a full inclusion placement, including appropriate related services; reimbursement of costs her parents incurred as a result of the private placement and provision of private services; and for reasonable attorney's fees and costs, both in the underlying administrative action and in the instant action.

On June 13, 2001, the District filed an Answer to Plaintiff's Complaint (the "Answer"), and it also filed a Counterclaim for Relief from Administrative Decision Pursuant to 20 U.S.C. § 1415 & FRCP 13(a)&(c) (the "Counterclaim").*fn6 The Counterclaim asserts a single counterclaim, which is also brought pursuant to 20 U.S.C. § 1415(i)(2). This counterclaim challenges the HO's findings in his Decision that the District failed to provide Katherine an FAPE for the 1999-2000 school year and for the 2000 ESY and that Katherine was entitled to reimbursement for one-half tuition and transportation. The Counterclaim prays that the Court, inter alia, vacate the portion of the Decision challenged by the Counterclaim and permanently enjoin SEHO from ordering or causing the District to retroactively fund Katherine's private school placement, services, transportation, and related costs; issue a declaratory judgment that the Decision violated the provisions of the IDEA; and award to the District any costs, fees, and damages to which the District is entitled by law and which the Court deems reasonable.

Katherine filed Plaintiff's Reply to Defendant's Counter-claim (the "Reply") on July 10, 2001. The Reply asserts affirmative defenses, including: that the Counterclaim fails to state a claim upon which relief can be granted; that the District's counterclaim is barred by the applicable statute of limitations; and that the counterclaim is moot,

On September 27, 2001, Katherine filed a Motion to Supplement Administrative Record, in which she asked the Court to allow her to augment the record from the administrative hearing below with evidence not included in the record. The Court denied Katherine's motion in an Order filed on June 11, 2002.

On October 1, 2002, the District filed Defendants' Joint Motion for Summary Judgment, and on October 2, 2002, Katherine filed Plaintiff's Motion for Summary Judgement (sic). Each motion sought summary judgment on each party's respective claim. Both motions, however, were woefully deficient with regard to providing evidentiary citations in support of the factual assertions set forth therein. The motions also raised certain procedural barriers to appropriate resolution of the parties' claims. Accordingly, in an Order Denying Without Prejudice Motions for Summary Judgment (the "Order Denying Motions Without Prejudice"), filed on January 13, 2003, the Court denied the motions without prejudice to their being renewed with sufficient evidentiary citations*fn7 and according to certain procedural parameters. In its Order, the Court established a briefing schedule that provided for the parties' filing motions for summary judgment on their respective claims and cross-motions for summary judgment on the opposing party's claims. Pursuant to that briefing schedule, the parties have filed the motions and cross-motions that are presently before the Court.*fn8 The District has also filed two objections to evidence and a request for judicial notice.


A. Motions for Summary Judgment Generally

Under Federal Rule of Civil Procedure 56, summary judgment is warranted against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The party moving for summary judgment bears the initial burden of demonstrating the "absence of a genuine issue of material fact." Id. at 323. If the movant meets this burden, the nonmoving party must come forward with specific facts demonstrating a genuine factual issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving party "cannot rely on the mere possibility of a factual dispute . . . to avert summary judgment." Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. Argonaut Ins. Co., 701 F.2d 95, 97 (9th Cir. 1983) (summary judgment properly granted where defendant failed to present any admissible evidence to support its position); accord Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) ("A summary judgment motion cannot be defeated by relying solely on conclusory allegations unsupported by factual data.").

There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,249 (1986). Thus, an opposition that fails to identify and reference triable facts is insufficient to preclude the Court's granting of a properly supported summary judgment motion. See Nilsson, Robbins, Dalgarn, Berliner, Carson & Wurst v. La. Hydrolec, 854 F.2d 1538, 1545 (9th Cir. 1988) (per curiam). Nonetheless, any inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the motion. Matsushita, 475 U.S. at 587.

That the evidence may be available in a party's voluminous exhibits is of no consequence. The Court is not obligated to consider matters not specifically brought to its attention. See Schwarzer, Tashima & Wagstaffe, Cal. Prac. Guide: Fed. Civ. Proc. Before Trial § 14.145.2 (Rutter Group 1993). The opposition to a summary judgment motion must designate and reference specific triable facts. Orr v. Bank of Am., NT & SA, 285 F.3d 764, 774 (9th Cir. 2002) (holding that "when a party relies on deposition testimony in a summary judgment motion without citing to page and line numbers, the trial court in its discretion may exclude the evidence"); Schneider v. TRW, Inc., 938 F.2d 986, 990-91 n. 2 (9th Cir. 1991) ("[T]he law of this circuit . . . recognizes that a district court is under no obligation to mine the full record for triable issues of fact.") (citation omitted); La. Hydrolec, 854 F.2d at 1545 ("In the absence of specific facts, as opposed to allegations, showing the existence of a genuine issue for trial, a properly supported summary judgment motion should be granted."); Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988) ("Appellant's failure to designate and reference triable facts was, in light of the language of Rule 56(c) and governing precedent, fatal to its opposition."); Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1988) (rejecting notion that "the entire record must be searched and found bereft of a genuine issue of material fact before summary judgment may be properly entered"). Thus, it is immaterial that evidence helpful to plaintiff may have been presented somewhere in the record.

B. IDEA Claims

1. Standard of Review of State Administrative Decision

The IDEA confers on any party aggrieved by the findings and decision made in a state administrative due process hearing regarding the provision of an FAPE the right to bring an original civil action in a state court of competent jurisdiction or in federal district court to review the findings and decision. 20 U.S.C. § 1415(i)(2).*fn9 The party challenging the decision bears the burden of persuasion on its claim. Clyde K. v. Puyallup Sch. Dist., No. 3, 35 F.3d 1396, 1399 (9th Cir. 1994).

The district court's review of the decision is somewhat deferential. "Because Congress intended states to have the primary responsibility for formulating each individual child's education, [courts] must defer to their `specialized knowledge and experience' by giving `due weight' to the decisions of the states' administrative bodies." Amanda J. ex rel. Annette J. v. Clark County Sch. Dist., 267 F.3d 877, 888 (9th Cir. 2001) (quoting in part Board of Education of Hendrick Hudson Central School District, Westchester County v. Rowley, 458 U.S. 176, 206-08 (1982)). This review, which has been characterized as a "modified de novo review" or "involved oversight," requires the district court to carefully consider the administrative agency's findings. Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 758 (3rd Cir. 1995). "The amount of deference accorded the hearing officer's findings increases where they are thorough and careful." Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 891 (9th Cir. 1995). After such consideration, "the court is free to accept or reject the findings in part or in whole." Susan N., 70 F.3d at 758.

2. Consideration of Evidence

In reviewing an administrative decision, "the court shall receive the records of the administrative proceedings; shall hear additional evidence at the request of a party; and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(B). While 20 U.S.C. § 1415(i)(2) empowers the district court to hear testimony not presented during the administrative hearing, the court has wide discretion in determining what additional evidence shall be considered. See Town of Burlington v. Mass. Dep't of Educ., 736 F.2d 773, 791 (1st Cir. 1984), aff'd sub nom. Sch. Comm. of Town of Burlington v. Mass Dep't of Educ., 471 U.S. 359 (1985).*fn10 The Ninth Circuit has construed "additional" to mean "supplemental" evidence. Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1472-73 (9th Cir. 1993). The court may exercise its discretion and allow supplementation in cases due to "gaps in the administrative transcript owing to mechanical failure, unavailability of a witness, an improper exclusion of evidence by the administrative agency, and evidence concerning relevant events occurring subsequent to the administrative hearing." Id. (quoting Town of Burlington, 736 F.2d at 790).

However, "additional" evidence is not evidence which merely repeats or embellishes evidence or testimony presented below. Id. In addition, the court must be mindful "of not allowing a party to undercut the statutory role of administrative expertise, the unfairness involved in one party's reserving its best evidence for trial, the reason the witness did not testify at the administrative hearing, and the conservation of judicial resources." Id. In short, "the trial court . . . must be careful not to allow such [additional] evidence to change the character of the hearing from one of review to a trial de novo." Id.; see also Amanda J. ex rel. Annette J., 267 F.3d at 877 ("Complete de novo review . . . is inappropriate.").


A. Plaintiff's Motion and Defendants' Cross-motion

Plaintiff's Motion and Defendants' Cross-motion seek summary judgment in the respective moving parties' favors on Katherine's claim. The motions present the following issues: First, did the HO properly apply the appropriate analytical framework and consider all of the facts presented in evaluating whether Katherine was provided an FAPE for the 2000 ESY and the 2000-2001 school year?*fn11 Second, under the appropriate analytical framework, does the evidence in the record support a finding as a matter of law that Katherine was provided an FAPE, or does it support a finding that she was not provided an FAPE? The Court addresses these issues in turn.

1. Did the HO Properly Apply the Appropriate Analytical Framework and Consider All of the Facts Presented in Evaluating Whether Katherine Was Provided an FAPE for the 2000 ESY and the 2000-2001 School Year?
Neither Katherine nor the District take issue with the HO's articulation of the framework for analyzing whether Katherine was provided an FAPE. Where they part company is on the issues of whether he correctly applied the appropriate framework and whether he considered all the facts presented at the hearing.

Despite the parties' agreement as to the appropriate analytical framework, the Court will review whether the framework articulated by the HO was correct. It will then turn to the areas of dispute between the parties.

a. Accuracy of HO's Articulation of the Appropriate Framework for Determining, for Purposes of IDEA Claims. Whether an FAPE Was Provided
The HO, citing Board of Education of Hendrick Hudson Central School District, Westchester County v. Rowley, 458 U.S. 176 (1982), set out the following general framework for determining whether Katherine was provided an FAPE for the relevant time periods: "the analysis of whether a student has been provided a FAPE is twofold, requiring the hearing officer to determine whether the procedural safeguards of the IDEA have been satisfied and to determine whether the FAPE provided was substantively appropriate." (Dec. at 15.) With regard to "procedural appropriateness," the HO observed, placement must be provided consistent with the various procedural protections for the student and the student's parents established under the IDEA, such as the parents' right to participate in the development of the student's IEP. (Id. at 14-15.) Noncompliance with procedural directives, however, does not require a finding of denial of an FAPE unless it results in the loss of educational opportunity to the student or seriously infringes on his or her parents' opportunity to participate in the IEP process. (Id at 15.)

With regard to "substantive appropriateness," according to the HO, an appropriate placement must (1) be designed to meet the student's unique needs; (2) be reasonably calculated to provide him or her with some educational benefit; (3) comport with his or her IEP; and (4) be provided in the least restrictive environment ("LRE"). (Id. at 14.) The HO stated that in determining whether the placement is in the least restrictive environment, under Ninth Circuit law, he was to employ a balancing test in which four factors were to be considered: (1) the educational benefits available to the disabled student in a regular classroom, supplemented with appropriate aides and services, as compared with the educational benefits of a special education classroom; (2) the nonacademic benefits of interaction with children who are not disabled; (3) the effect of the disabled student's presence on the teacher and the other children in the regular classroom; and (4) the cost of mainstreaming the disabled student in a regular classroom. (Id. at 25.)

Despite the parties' wholesale embracement of the HO's articulation of the applicable analytical framework, the HO's overarching substantive/procedural analytical paradigm finds no support in the relevant authorities. Although the HO cited Rowley for the aforementioned two-step inquiry involving "procedural appropriateness" and "substantive appropriateness" of the placement provided the disabled student, Rowley establishes a somewhat different two-step inquiry:

[A] court's inquiry in suits brought under § 1415[(i)(2)] is twofold. First, has the State complied with the procedures set forth in the [IDEA]? And second, is the individualized education program developed through the [IDEA's] procedures reasonably calculated to enable the child to receive educational benefits? If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more.
458 U.S. at 206-07 (emphasis added). Rowley thus creates an analytical distinction between (1) whether the school district complied with the IDEA's various procedural requirements and (2) whether the IEP developed for the disabled student is reasonably calculated to enable the student to receive educational benefits. Id. It does not, as the HO apparently believed, (see Dec. at 15), distinguish between the procedural appropriateness and the substantive appropriateness of the child's placement.

Turning to the application of this framework in the instant case, Katherine has never placed in issue whether the IEP developed for her was reasonably calculated to enable her to receive educational benefits — the second step of the Rowley inquiry. She has argued only that certain procedures under the IDEA were not honored: with regard to the 1999-2000 school year and the 2000 ESY, she claims that the District failed to comply with several procedural safeguards established for her and her parents' protection under the IDEA, resulting in denial of educational opportunity; with regard to the 2000-2001 school year, she argues that the placement she was offered was not in the least restrictive setting. The HO evidently construed Katherine's first challenge (concerning compliance with various IDEA procedural ...

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