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D.H. v. Poway Unified School District

March 14, 2011

D.H., PLAINTIFF,
v.
POWAY UNIFIED SCHOOL DISTRICT, DEFENDANT.



The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

This is an action brought by a hearing-impaired eighth-grade student pursuant to Section 504 of the Rehabilitation Act and the Individuals with Disabilities Education Act ("IDEA"). After an unfavorable administrative decision, Plaintiff filed a complaint in this court, asserting causes of action for violation of the Rehabilitation Act and IDEA and for reversal of the administrative decision. She has moved for summary adjudication on the third cause of action to reverse the decision of the Office of the Administrative Hearings of the State of California, which denied Plaintiff's request for computer assisted real time captioning ("CART") as a part of her free appropriate public education. Defendant opposed Plaintiff's motion. For the reasons which follow, Plaintiff's motion is DENIED.

"The IDEA provides federal funds to assist state and local agencies in educating children with disabilities, but conditions such funding on compliance with certain goals and procedures. [Its] primary purpose is to assure that all children with disabilities have available to them a free appropriate public education which emphasizes special education and related services designed to meet their unique needs. This purpose is achieved through the development of an individualized education program ("IEP") for each child with a disability. The IEP is crafted annually by a team that includes a representative of the local educational agency, the child's teacher and parents, and, in appropriate cases, the child. The IEP document must contain: information regarding the child's present levels of performance; a statement of annual goals and short-term instructional objectives; a statement of the specific educational services to be provided and the extent to which the child can participate in regular educational programs; and objective criteria for measuring the student's progress." Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1469 (9th Cir. 1993) (internal quotation marks, ellipsis, brackets and citations omitted).

"In addition to these substantive provisions, the IDEA contains numerous procedural safeguards. In particular, [it] requires that the parents or guardians of a disabled child be notified of any proposed change in the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to the child, and that they be permitted to bring a complaint about any matter relating to such evaluation and educational placement. When a complaint is made, the child's parents are entitled to an impartial due process hearing conducted either by the state or local educational agency, or an intermediate educational unit, as determined by state law. In California, the hearing is conducted by a person knowledgeable in the laws governing special education and administrative hearings. After the administrative hearing officer renders a decision, any party aggrieved by the findings and decision has the right to bring a civil action in state or federal court." Id. (internal quotation marks, ellipsis, brackets and citations omitted).

Plaintiff's third cause of action for reversal of the administrative decision is based entirely on the administrative record. The relevant facts are undisputed. Plaintiff is eligible for special education because she has moderate to profound hearing loss. She has a cochlear implant in her right ear and a hearing aid in her left. She uses speech and listening as her primary mode of communication. She attends school in a general education classroom with non-disabled peers; however, she does not hear everything spoken in the classroom. She relies on visual strategies, such as lip reading and observation of the activities of her peers, and educated guesses to fill in for the sentences she does not hear. Plaintiff is not always aware when she has not heard something. In addition, she has some difficulty communicating in that she sometimes mumbles, speaks very softly and has difficulty producing certain sounds. Nevertheless, she has earned excellent grades and is an active participant in class and in social life at school.

Defendant's IEP for Plaintiff provided Plaintiff with deaf and hard of hearing services, audiological services, and FM system,*fn1 among other supports to try to meet her needs. At the April 20, 2009 IEP team meeting, Plaintiff's parents requested CART services. CART is a transcription service in real time, which displays words on a computer screen as they are spoken. Plaintiff argues that this would allow her better to follow the lectures as well as other students' contributions and class discussions. The IEP team denied the request as unnecessary to provide Plaintiff with a free appropriate public education.

On May 28, 2009 Plaintiff filed a due process hearing request under the IDEA. The only issue raised was Defendant's failure to offer CART services. Prior to the hearing, in an August 10, 2009 letter, Defendant offered to give Plaintiff transcription services similar to CART, however, the speech would be summarized rather than transcribed word-for-word. This service would be provided on condition that Plaintiff's parents consented to it as a part of the IEP. On September 14, 2009 Defendant filed its own due process hearing request, seeking a declaration that the August 10, 2009 offer of transcription service provided Plaintiff with free appropriate public education.

On October 28, 2009 the administrative judge ("ALJ") found that the April 20, 2009 IEP in its original form provided Plaintiff with a free appropriate public education and that CART services were not required. Plaintiff appealed this decision to this court and moves for summary adjudication of her claim that the ALJ's decision was erroneous and should be reversed.

In an action challenging an administrative decision, the IDEA provides that "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)(C). As the party seeking relief in federal court, Plaintiff bears the burden of demonstrating that the ALJ's decision should be reversed. J.W. v. Fresno Unif. Sch. Dist., 626 F.3d 431, 438 (9th Cir. 2010) affirming and attaching J.W. v. Fresno Unif. Sch. Dist., 611 F. Supp. 2d 1097 (E.D. Cal. 2009). "In addition the party challenging the administrative decision bears the burden of persuasion on each claim challenged." Id.

"In review of an IDEA due process hearing, courts give less deference than is conventional in review of other agency actions. How much deference to give state educational agencies, however, is a matter for the discretion of the courts. The Court, in recognition of the expertise of the administrative agency, must consider the findings carefully and endeavor to respond to the hearing officer's resolution of each material issue. After consideration, the court is free to accept or reject the findings in part or in whole." Id. (internal quotation marks and citations omitted).

"Due weight must be given to the administrative decision below and courts must not substitute their own notions of sound educational policy for those of the school authorities which they review. The amount of deference afforded the hearing officer's findings increase where they are thorough and careful. This Court gives deference to an ALJ's decision when it evinces his or her careful, impartial consideration of all the evidence and demonstrates his or her sensitivity to the complexity of the issues presented." Id. (internal quotation marks, brackets and citations omitted).

Plaintiff objects to the ALJ's decision on two grounds. First, she argues that the ALJ applied an incorrect legal standard by holding that the state law requirement of equal communication access for hearing-impaired students was inapplicable. Second, she contends that the ALJ erred when she found that Defendant's August 10, 2009 letter offering Plaintiff a transcription service and its own due process complaint against Plaintiff did not constitute an admission that Plaintiff needed speech transcription services such as CART and that the evidence was irrelevant to the issue whether she does.

Plaintiff correctly argues that the IDEA's free appropriate public education requirement incorporates state law standards, including California law pertaining to equal communication access for hearing-impaired students. Free appropriate public education is defined in the IDEA as "special education and related services that [¶] (A) have been provided at public expense, under public supervision and direction, and without charge; [¶] (B) meet the standards of the State educational agency; [¶] (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and [¶] (D) are provided in conformity with the individualized education program required under section 1414(d) of this title." 20 U.S.C. § 1401(9) (emphasis added). "State standards that are not inconsistent with federal standards [under the IDEA] are also enforceable in federal court." J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 947 (9th Cir. 2010) (internal quotation marks and citation omitted, brackets in original); see also J.W., 626 F.3d at 433 ("Both state and federal regulations supplement IDEA's procedural and substantive requirements."); Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 203-04 (1982) ("The IDEA requirement of free appropriate public education is satisfied "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State's educational standards, must approximate the grade levels used in the State's regular education, and must comport with the child's IEP.").

Plaintiff points to a number of California Education Code Sections which address the needs of hearing-impaired students. Section 56000.5 contains legislative findings that "it is essential that hard-of-hearing and deaf children, like all children, have programs in which they have direct and appropriate access to all components of the educational process, including, but not limited to, recess, lunch and extracurricular social and athletic activities;" and that they "have an education in which their unique communication mode is respected" and ...


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