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E.J., A Minor; By and Through Her Guardians Ad Litem, Tom J. and Ruth J v. San Carlos Elementary School District

March 24, 2011


The opinion of the court was delivered by: Richard Seeborg United States District Court United States District Judge

*E-Filed 3/24/11*



Plaintiff E.J. was a student in the San Carlos Elementary School District (District). In January 2009, the District determined that E.J. was qualified to receive special education services 22 based on her diagnoses of Asperger's syndrome and an anxiety disorder. As required by the Individuals with Disabilities Education Act (IDEA), the District developed an Individualized 24 Education Program (IEP) to address her unique educational needs. E.J.'s parents, Tom and Ruth, 25 the guardians ad litem in this action, rejected the offered IEP as inadequate and brought a due 26 process complaint against the District contending that it failed to comply with its IDEA obligations. 27

After the Administrative Law Judge (ALJ) decided all issues in favor of the District, E.J. sought 28 review in this Court. She now moves for summary judgment on the record before the Court. The District opposes the motion and requests entry of judgment in its favor. Based on the administrative 2 record, as well as the parties' filings and oral argument, the motion for summary judgment is denied 3 and judgment will be entered for defendant District. 4

During the 2005-2006 school year, E.J. was a fifth-grade student at Tierra Linda Middle School within the District.*fn1 Administrative Record (AR) 72. In the summer of 2005, she began 7 seeing a neuropsychologist, Amy Tsou, Ph.D. AR 197. In October 2005, Tsou diagnosed E.J. as 8 having Pervasive Developmental Disorder, Not Otherwise Specified (PDD NOS), with Asperger's 9 features. AR 1993. She provided a report to E.J.'s parents, which included the results of her testing 10 and several recommendations. AR 1984-1999. In particular, Tsou recommended that E.J. "receive an Individual Education Program (IEP) to address her specific academic needs."*fn2 AR 1993.

Although the parents received a copy of Tsou's report, the parties dispute whether Ruth gave it to 13 the school. 14

In response to concerns raised by Ruth, the school convened a student study team (SST) meeting to address E.J.'s education. AR 631-32. The meeting was held on December 6, 2005 and 16 included Ruth, E.J.'s teachers, the vice principal, and Vivian Garlick, who is a full-time student 17 counselor at Terra Linda. AR 200-01, 1486. The team learned that E.J. had been diagnosed with PDD NOS with Asperger's features. AR 1486. At the meeting, a number of modifications to E.J.'s 19 instruction and suggested actions were recorded including: extended time on tests as needed; use of 20 relaxation techniques; use of a sign if E.J. needed to take a break during class; informing E.J.'s 21 mother when new concepts were introduced; guided study with a partner for math; and having E.J.'s 22 mother inform the school when she mastered particular work. Id. E.J. completed fifth grade with 23 grades in the final trimester of A, A-, B, B, B- and B-. AR 1481. The modifications from the 24

December 2005 SST meeting were continued throughout the 2006-2007 school year, while E.J. was in sixth grade and she finished that school year with final trimester grades of three As, two Bs, and a C. AR 1482.

emailed Garlick that E.J. had been professionally tested and found to have "nonverbal learning," 5 obsessive compulsive disorder (OCD), and anxiety disorder. AR 2032. On October 19, 2007, the 6 school held another SST meeting where the team suggested further actions for E.J. including: 7 covering questions and doing one at a time on tests and assignments; using a guided study sheet and 8 a homework folder; and having E.J.'s mother note when she was overwhelmed with work. AR

As E.J.'s difficulties in seventh grade continued, the SST met again on March 10, 2008. AR 1490. Dr. Lesley Martin, the principal at Terra Linda, attended the meeting along with Ruth, E.J.'s teachers, and Garlick. Id. Under the heading "Previous Planned Actions," the meeting notes 13 include the entry "504 Plan? Psycho Ed Ref.?" suggesting that the team had considered 14 implementing a 504 Plan*fn3 or referring E.J. for a special education assessment. Id. At that time, the 15 team made the decision to create a 504 Plan. Id. New modifications were adopted including: extra 16 time on tests and homework when needed; modifying E.J.'s humanities grade by excusing 17 assignments; taking tests in humanities and math when ready; and taking tests in a quiet setting as 18 needed. At the end of E.J.'s seventh grade year, she received grades of A, B-, B-, C-, and C-. AR

On July 2, 2008, during the summer before E.J. entered eighth grade, her parents informed

Garlick and Martin that E.J. was "having a terrible time with anxiety and depression anticipating the 22 beginning of 8th grade." AR 2048. On August 21, 2008, the school held a 504 Plan meeting. AR 1500. The 504 Plan reflects that E.J. had been diagnosed in the past year with Asperger's 24 syndrome. Id. As an additional accommodation, E.J.'s teachers were to provide her with their notes 25 after class. Id. On September 15, 2008, Ruth emailed Garlick and asked her "at what point would 26 you recommend the possibility of an IEP as I am sure that the teachers are doing the best that they U.S.C. § 794, which provides for reasonable accommodations in education for children with disabilities.

At the beginning of the 2007-2008 school year, as E.J. entered seventh grade, her mother 1488.

can at this point." AR 2285. The next day, Garlick responded that she "was gathering data and 2 information on [E.J.'s] current interventions" to determine if she needed the "further support that an

On November 12, 2008, Ruth informed Martin that E.J. "would be out" of school at Terra

Linda due to her anxiety. AR 1714. Martin responded on the same day that she had briefly met 6 with all of E.J.'s teachers and that she was doing "quite well" in most classes. Id. The areas of 7 concern were math and history. Id. Martin communicated to Ruth that the team would meet on IEP may provide." AR 2283. She also suggested potentially revising E.J.'s 504 Plan. Id.

November 18, 2008. Id. At the end of that meeting, the school made a referral for E.J. to be 9 assessed for special education services. AP 1506.

Mitzi Geller, a speech-language pathologist, also evaluated E.J. and recommended language 17 therapy. AR 1547-54.

February 5, 2009 to develop her IEP. AR 1568-92. The IEP offered by the District involved 20 continued placement in general education with resource support, speech/language therapy, and 21 counseling. AR 1580. Specific services included: specialized academic instruction for three fifty-22 minute periods per day; speech and language services for forty-five minutes twice per week; 23 counseling for thirty minutes per week and as needed on a daily basis; and one-to-one paraeducator 24 support during lunch for four days per week. Id. The IEP also allowed for flexible settings, extra 25 ...

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