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M.P. v. Poway Unified School District

July 12, 2010

M.P., A MINOR, BY AND THROUGH JOHN AND CLAUDETTE PERUSSE, PLAINTIFF,
v.
POWAY UNIFIED SCHOOL DISTRICT, DEFENDANT.



The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT (Doc. No. 12.)

Presently before the Court is Plaintiffs' motion for summary judgment and request to submit additional evidence.*fn1 (Doc. No. 12.) Also before the Court are the District's oppositions and Plaintiffs' replies. (Doc. Nos. 14, 15, 16.) For the reasons stated below, the Court HEREBY DENIES Plaintiffs' request to submit additional evidence, FINDS in favor of the District on all issues and DENIES Plaintiffs' motion for summary judgment.

BACKGROUND

The facts are not in dispute. Student was first assessed and identified as a student eligible for special education in second grade, in 2005, while enrolled at a District school. (See Administrative Record ("AR") at 1160-65.) On May 18, 2005, an initial Individualized Educational Program ("IEP") team meeting was held for Student. (See AR at 1173.) At this meeting, the team reviewed assessments and reports administered by Erin Stabeck, a speech and language pathologist, and Berkley Doucette, a school psychologist. (Id.; see also id. 1160-63, 1178-82.) A year later, in May 2006, the IEP team met again and created an IEP, which Student's parents consented to and was thereafter implemented. (See id. at 1314, 1330.)

The IEP at issue in the present case was developed in May 2007, when the team met again and reviewed Student's progress on goals and present levels of performance. (See AR at 1342-59.) On May 8, 2007, Student's mother consented to the District placement and IEP. (Id.) Over the summer, however, Student's parents retained educational psychologist Dr. Sara Frampton. On August 9, 2007, the District received a letter giving notice that Dr. Frampton had been retained and that Student's parents were revoking parental consent to the May 8, 2007 IEP. (See id. at 1365.) The letter also indicated that Student's parents "intended to remove [Student] from the Poway Unified School District, make a unilateral placement in a nonpublic school, and seek reimbursement from the district." (Id.)

On September 6, 2007, Student's IEP team, Student's parents, and Dr. Frampton met to discuss the parent's concerns. (See AR at 1370-74.) The team members offered to conduct various assessments, which Dr. Frampton declined. (Id. at 1372-73.) The District thereafter made several attempts to obtain Student's parent's consent to reassess Student. (See id. at 1380, 1382, 1383, 1385.) On March 12, 2008, Student's parents returned the signed evaluation plan and marked in the box "yes" acknowledging, "all areas of suspected disability are addressed in this plan," and wrote in handwriting "To the best of my Knowledge." (See id. at 1387-89.) The District thereafter conducted various assessments, though the assessment plan did not include an assessment by an audiologist.

On June 5, 2008, Student's IEP team met again to discuss the assessment reports. (See AR at 1234-57.) The team, however, was unable to complete the IEP and rescheduled the meeting, making a tentative placement offer at a District school pending the completion of the IEP team meeting. (Id. at 1252-57.) The IEP team, Student's parents, and Dr. Frampton reconvened on September 3, 2008 to complete the IEP process and finalize Student's free appropriate public education ("FAPE"). (See id. at 1258-65.) During this meeting, Dr. Frampton requested that the District conduct an audiological assessment, but the District refused because it felt that its prior evaluations were sufficient.*fn2 (See id. at 592-93, 821-23.) Student's parents refused to consent to the IEP. (Id. at 1264.)

On February 17, 2009, Plaintiffs filed for a due process hearing with the Office of Administrative Hearings ("OAH") against the District, contending that the District failed to offer a FAPE under the Individuals with Disabilities Education Act ("IDEA") for the 2007-2008 and 2008-2009 school year. (AR at 916-17.) The Notice of Due Process alleged that a FAPE was denied due to "[l]ack of appropriate assessment in the areas of auditory processing which resulted in a failure to properly identify [Student's] needs and an . . . [i]nappropriate placement and program due to the failure to meet his needs." (Id. at 916.) The due process hearing took place over a period of five days, beginning on May 26, 2009 and concluding on June 3, 2009. (See id. at 880.)

On July 10, 2009, the ALJ issued its Decision, finding in favor of the District on all issues. (See AR at 901.) Plaintiffs filed the present Complaint in this Court on June 27, 2009 pursuant to 20 U.S.C. § 1415(i)(3)(A). (Doc. No. 1.) The District filed its Answer on August 17, 2009. (Doc. No. 4.) Plaintiffs filed the present motion for summary judgment and complete administrative record on February 26, 2010. (Doc. Nos. 12, 13.) Plaintiffs also filed a request to supplement the administrative record on that same date. (Doc. No. 12, Ex. 1.) The District filed its response in opposition to both the motion for summary judgment and request to supplement the administrative record on March 19, 2010 (Doc. Nos. 14, 15.) Plaintiffs filed a reply to both the motion and request on April 2, 2010. (Doc. No. 16.) A hearing on the matter was held before this Court on Monday, May 17, 2010.

LEGAL STANDARDS

I. Standard of Review

This Court has jurisdiction of the matter pursuant to 20 U.S.C. § 1415(i)(3)(A). In such an action, "the court . . . (i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." Id. §1415(i)(2)(C).

The district court reviews the administrative decision under a modified de novo standard. See Ojai UnifiedSch. Dist. v. Jackson, 4 F.3d 1467, 1471-73 (9th Cir. 1993). "[T]he provision that a reviewing court base its decision on the 'preponderance of the evidence' is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." Bd. of Educ. of Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982). The reviewing court must give "due weight" to the administrative proceedings. Id.; Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 891-92 (9th Cir. 1995). However, how much deference is afforded the administrative decision is for the discretion of the court. Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1311 (9th Cir. 1987). Deference is particularly warranted when the hearing officer's findings are "thorough and careful." See Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir. 1994).

II. Individuals with Disabilities Education Act ("IDEA")

The Individuals with Disabilities Education Act ("IDEA") provides that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400(d); see also Cal. Educ. Code § 56000. A FAPE is defined as special education and related services that are available to the child at no cost to the parent, meet the state educational standards, and conform to the child's individualized educational program ("IEP"). 20 U.S.C. § 1401(8). Federal and California state law require a district to provide a FAPE in the least restrictive environment ("LRE") for each special education student. See 20 U.S.C. § 1412(a); 34 C.F.R. § 300.114; Cal. Educ. Code § 56031, 56033.5.

The IDEA, its regulations, and state law provide that a state "agency shall conduct a full and individual initial evaluation . . . before the initial provision of special education and related services to a child with a disability . . ." 20 U.S.C. § 1414(a)(1)(A); see also Cal. Educ. Code § 56320. Parental consent must be obtained before the assessment is conducted. Id. § 1414(a)(1)(D)(i)(I). "The initial evaluation . . . must consist of procedures (i) To determine if the child is a child with a disability . . . ; and (ii) To determine the educational needs of the child." 34 C.F.R. § 300.301(c)(2). These procedures must (1) Use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child.. . . ; (2) Not use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability and for determining an appropriate educational program for the child; and (3) Use technically sound instruments . . .

Id. § 300.304(b); see also Cal. Educ. Code § 56320(e). Further, the evaluation must be "administered by trained and knowledgeable personnel" and "in accordance with any instructions provided by the producer of the assessments." 34 C.F.R. § 300.304(c)(1)(iv), (v); see also Cal. Educ. Code §§ 56320(b)(3), (g) and 56322. The child must also be "assessed in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities[.]"

34 C.F.R. § 300.304(c)(4); see also Cal. Educ. Code § 56320(f).

After the agency determines that a child is a child with a disability, the agency must reevaluate each child at least once every three years, but not more than once a year, unless agreed by the agency and the child's parents that reevaluation is ...


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