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Forest Grove School District v. T.A

April 27, 2011

FOREST GROVE SCHOOL DISTRICT,
PLAINTIFF-APPELLEE,
v.
T.A., DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding D.C. No. 3:04-cv-00331-MO

The opinion of the court was delivered by: Bea, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted

October 5, 2010-San Francisco, California

Before: Pamela Ann Rymer, Susan P. Graber, and Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea;

Dissent by Judge Graber

COUNSEL

OPINION

T.A., a former student in the Forest Grove School District ("Forest Grove"), appeals the district court's determination that he is not entitled to an award of reimbursement for his private school tuition under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415(i)(2)(C). On remand from the Supreme Court's opinion and our opinion, Forest Grove Sch. Dist. v. T.A., 523 F.3d 1078 (9th Cir. 2008), aff'd, 129 S. Ct. 2484 (2009), the district court held that equitable considerations did not support any award of private-school tuition at Mount Bachelor Academy as a result of Forest Grove's failure to provide T.A. with a Free Appropriate Public Education ("FAPE") under the IDEA. Because the district court did not abuse its discretion when it determined T.A.'s parents enrolled him at Mount Bachelor for non-educational reasons, we affirm.

I. FACTS AND PROCEDURAL HISTORY

The facts of this case were published in Forest Grove Sch. Dist. v. T.A., 523 F.3d 1078, 1081-83 (9th Cir. 2008) ("Forest Grove I"), and we repeat them here only to the extent necessary to explain our decision today. T.A. was enrolled in the Forest Grove School District from kindergarten until the spring semester of his junior year in high school, when his parents removed him from public school and enrolled him at Mount Bachelor Academy-a private boarding school which charged $5,200 a month for room and board.

At Forest Grove High School, T.A.'s scholastic performance had been poor; he earned mostly C's and D's. When T.A. was a freshman, his parents requested that he be evaluated for a learning disability. If T.A. had a learning disability, he might have been eligible for special education services under the IDEA. See 20 U.S.C. § 1401(3)(A) (children with specific learning disabilities are eligible for services under the IDEA if "by reason thereof, [the child] needs special education and related services"). Although Forest Grove evaluated T.A. and concluded he did not have a specific learning disability, school staff noted in an internal memo that he might have Attention Deficit Hyperactivity Disorder (ADHD).*fn1

ADHD is a separate basis under which T.A. would have been eligible for special education services. Id. T.A.'s parents were informed in June 2001 he did not have a learning disability and was therefore ineligible for special education services. T.A. continued to earn mostly C's and D's throughout his sophomore and junior years of high school. Forest Grove did not undertake any additional action with respect to its internal memorandum that T.A. might have ADHD.

In fall 2002-during T.A.'s junior year of high school-he began to use marijuana at least three or four times a day. Sometimes, T.A. was so highly dosed with marijuana he could not speak or get out of bed. T.A.'s parents found drug paraphernalia in his room. His parents also discovered he had made $1200 worth of "1-900" pornographic phone calls, and they removed the family computer from their home after they discovered T.A. had visited Internet pornography sites. On February 11, 2003, T.A. ran away from home, but was returned to his parents by the police several days later. In response to T.A.'s escalating behavioral problems, T.A.'s parents took him to Dr. Michael Fulop, a psychiatrist, who conducted several tests and evaluations of T.A. in late January and February 2003. After T.A. ran away from home-but without seeking intervention by, or services from, the school district-T.A.'s parents removed T.A. from school and enrolled him in a three-week program for troubled youth at Freer Wilderness Therapy Expeditions in March 2003.*fn2 At a family therapy session held at Freer, T.A. informed his parents he had used cocaine.

Dr. Fulop completed his report on T.A on March 15, 2003, while T.A. was enrolled at Freer. Dr. Fulop diagnosed T.A. with ADHD, as well as depression and marijuana addiction. On March 23, 2003-upon T.A.'s return from Freer-his parents immediately removed him from public school and enrolled him at Mount Bachelor Academy. Subsequently, on April 18, 2003, T.A.'s parents filed an IDEA complaint against Forest Grove, which claimed Forest Grove had not provided T.A. with a FAPE under the IDEA. As required by the IDEA, T.A.'s parents requested an administrative due ...


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