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K.M., A Minor, By and Through Her Guardian Ad Litem, Lynn Bright v. Tustin Unified School District

July 5, 2011


The opinion of the court was delivered by: David O. Carter United States District Judge


Before the Court are cross-motions for summary judgment filed by Plaintiff K.M. ("K.M."), by and through her Guardian Ad Litem, Lynn Bright,*fn1 ("Plaintiff's Motion") and Defendant Tustin Unified School District ("Defendant" or "the District") ("Defendant's Motion"). The Court has considered the moving, opposing, and replying papers to both motions, as well as oral arguments, and has reviewed the extensive administrative record, and accordingly DENIES Plaintiff's Motion and GRANTS Defendant's Motion.


This case comes to this Court as both an appeal of an Administrative Law Judge's findings, as well as separate claims under the Americans with Disabilities Act; Section 504 of the Rehabilitation Act; and the Unruh Act. The Court summarizes the relevant facts here, based on its careful review of the Administrative Record*fn2 and the additional evidence supplied by the parties. Additional facts, as well as discussion of prior factual and legal determinations made by the Administrative Law Judge ("ALJ") will be discussed when necessary throughout this Order. However, the facts relevant for the appeal of the ALJ's findings are limited to a narrower time period than the facts relevant for K.M.'s claims under the remaining claims.

About K.M.

Plaintiff K.M. is a deaf, sixteen year-old*fn3 girl attending high school within Defendant Tustin School District.K.M. uses cochlear implants*fn4 , and relies on lip-reading and her observations of social cues to communicate with others. AR001556. Plaintiff's Declaration of K.M. in Opposition to Motion for Summary Judgment by Tustin ("K.M. Decl."), ¶ 1. Because of her difficulty hearing, she often needs to make eye contact so she can rely on her lip-reading and visual cues to follow along. See AR000043. K.M.'s primary mode of communication is spoken English, and she is an auditory/oral learner. AR000811. Her hearing loss in her right ear is considered in the minimal to mild range, and her left ear, with the help of a hearing aid, has been found to have hearing loss in the "mild to moderate or profound" range. AR000426, AR000974-000976; AR001991; AR002362.

K.M. qualifies for special education and since kindergarten, K.M. has been fully included in general education classes. AR001987, AR002012, AR002017. During that time, she has participated in weekly auditory-visual therapy ("AVT"), funded by the District. AR002012, AR002017. She received her AVT services from Karen Rothwell-Vivan ("Rothwell-Vivian"), a licensed audiologist and certified AVT therapist, who has worked with K.M. since she was about one year-old. AR000877.

K.M.'s Disability and Its Effect on Her Classroom Experience

According to K.M., her disability affects her classroom experience. She expresses that "[i]t is very difficult for me to hear what is said in the classroom" and that it "is generally easier for me to hear the teacher compared to other students and class discussion." K.M. Decl. ¶ 2. As a result of her need to "concentrate and focus even more intently" to hear other students in class talk, as well as the fact that the majority of her teachers require student participation in class, K.M. "work[s] very hard to participate." Id. at ¶ 4. "At the end of the day, [K.M. is] emotionally very tired from all the intense concentration" and "come[s] home mentally exhausted from trying to listen." Id. at ¶ ¶ 2-3; AR001553. K.M. has especially struggled when teachers have played videos without captioning in class, and in portable classrooms, though the parties dispute whether this continues to be a relevant issue.

K.M.'s difficulty hearing impacts her ability to follow what is happening in classrooms, particularly student discussions. She reports that she will laugh at school when she sees others laughing and worries about looking stupid if others realize she did not catch the joke. AR001554. She also nods along even when she does not hear what people are saying, because in the past she learned that people get frustrated with her if she asks for clarification too often. Id. This at times results in her pretending to hear things she does not hear in class. AR01556. K.M. says she typically struggles to follow a teacher about once a day, and in some classes has trouble hearing student discussion as often as every five minutes. AR001538-1541.

K.M.'s teachers agreed to provide accommodations for her disability. These have included at time preferential seating, repeating student comments back, providing closed captioning at times on videos, and providing copies of notes. District's SUF, ¶ ¶ 23-24. K.M. has testified, however, that these accommodations were not always followed, and were violated in some instances, such as when one of her teachers frequently showed videos without captioning. See AR001544-1545; AR001547; see also K.M. Decl. Other evidence provided by Plaintiff also supports K.M.'s testimony that her teachers often forgot to repeat back classroom comments. AR000385; AR002114-2158.

Despite her difficulty in classes, K.M. has generally earned average to above-average grades in school. Many of her teachers have testified to the fact that she has participated in classes and appears to be following class discussions. See District's SUF, ¶ ¶ 25-27.

CART, TypeWell, and FM Technologies

As a result of the impact of her hearing loss on her education, K.M. seeks to be provided with Communication Access Real-time Translation ("CART"). The technology is comparable to court reporting, and involves a captionist entering spoken words and sounds into a machine, which then translates the entries into real-time captions to be displayed on a laptop computer screen. AR001895. CART provides word-for-word transcription. K.M. believes that access to CART would improve her comprehension as it is easier for her to read what people are saying than to try to listen. K.M. Decl ¶ 4. CART is used for students with hearing impairments in other public high schools in southern California, including Los Angeles Unified School District, Santa Monica Malibu Unified School District, and Irvine School District, among others. AR000305-306.

K.M. had the opportunity to test out CART, along with TypeWell, in both her English and Ancient Civilizations classes. AR001556-1557. She also observed CART being used at Santiago Community College. Id. She found CART extremely helpful, and preferred it to TypeWell, because it allowed her to follow along with exactly what was being said in class discussions. AR001557-1558. Nonetheless, she described TypeWell as "interesting" but did not find it as helpful as CART in some ways. AR001559-1560. According to the District, she also informed her IEP team that she did, in fact, like TypeWell. See id.

During middle school, the District had provided K.M. with access to FM Technology ("FM") in the classroom. AR001989, AR002070, AR002174, AR002185, AR002209. The personal FM system involved a microphone, which would be carried to each class for the teacher or speaker to hold, and a receiver to deliver the voice signal to the hearing aid or cochlear implant. K.M. did not like the FM system, which picked up a lot of static when the teacher moved around. The system would also distract K.M. by transmitting private conversations between the teachers and other students. K.M. refused to use FM after eighth grade, finding that it gave her headaches and that it picked up on distracting, background noises such as the teacher's movements, and impeded her ability to focus. AR001551-1553; see also AR001235.

IEP Meetings

On June 9, 2008, at the end of K.M.'s seventh-grade year of school, the District held an annual Individualized Education Program ("IEP") meeting, which included, among others, K.M.'s middle school teacher, Jennifer Smith, and her mother. The purpose of this meeting was to develop K.M.'s special education program for eighth grade. The ALJ stated that under California's Standardized Testing and Reporting Program, K.M. scored proficient scores in English Language Arts and Math, and proficient scores in eighth grade. OAH decision, AR001894.

At that meeting, K.M.'s mother ("Mother") first requested CART services be provided to K.M., based on her concerns about K.M.'s transition to high school. Mother wanted to give the District sufficient time to research and budget for the CART services. She also indicated that she was concerned about K.M.'s refusal to use the FM system in light of the fact that all her middle school teachers had been warning her that the amount of work and discussion would dramatically increase in high school. AR001230-1231. Mother also knew other parents whose children were using CART in school, and knew that K.M. had relied heavily on captioning in other areas of her life, including watching television. Id. Mother's request was noted in K.M.'s IEP, including the notation that Mother had provided information and research on the technology. AR002270. The District indicated it would respond to the request by June 25, 2008. AR000031; AR00270; AR001233. It failed to do so. AR00074-75.

On June 5, 2009, at the end of K.M.'s eighth grade year, another IEP meeting was held. During that meeting, Karen Rothwell-Vivian presented her report to the IEP team, recommending that K.M. receive CART in all her academic high school classes so that she can access the information presented by her teachers and classmates. AR002322. Mother continued to request CART because of her concern about K.M.'s ability to hear class discussions. AR002286. The parties dispute whether she requested CART for all classes or for only honors classes. See Defendant Tustin Unified School District's Statement of Genuine Disputes of Material Fact ("District's SGD"), ¶ 83. The District did not agree to provide CART and proposed conducting additional assessments of K.M., but did not specify which kind of assessments, despite Mother's questioning. AR001248-1249. As a result, Mother became frustrated, believing that the District was attempting to stall to avoid providing the CART services. AR001251-1257.

On October 22, 2009, another IEP meeting was held with K.M. present. At this point, K.M. had started high school, and expressed that she could not hear much of what was happening in class, "especially students behind and to the left of her." AR002289. She also indicated that she had a particularly hard time in portable classrooms and when students talk over each other, but admitted to feeling uncomfortable speaking out in class because of her uncertainty as to what other students have said. AR002289. She further explained that captioning was important because she could process writing more quickly than speech. AR001291-1292. There is some dispute about whether K.M. raised her difficulties in certain classes to the District at this meeting; K.M. admits she may not have alerted the team to some problems in specific classes. See AR001561. The District once again offered K.M. use of the FM system, even though she explained that she did not want to force her classmates to pass around a microphone in class. AR002289. The District also raised the possibility of TypeWell, which Mother opposed, given its lack of word-for-word access. AR001276-1277.

Another IEP meeting was held on February 20, 2010, during which K.M. described her preference for CART again. Mother raised the problem of many videos in class not using captioning. AR002294. Once again, the District promoted the FM system. AR002295. Rothwell-Vivian recommended CART for K.M., explaining her belief that it would allow her to follow class discussions and to improve her vocabulary and use of idioms, as well as develop note-taking skills. AR000895-947.

The parties dispute whether the requests for CART throughout the IEP meetings were seriously considered by the District. Plaintiff insists that throughout the IEP meetings, proponents of CART--including Mother, K.M., and Rothwell-Vivian--were not asked questions about CART and their support for it. See District's SGD, ¶ ¶ 66-104. Plaintiff further insists that the District improperly relied upon Maria Abramson, its audiologist, in rejecting CART services, despite her lack of expertise on CART. See Plaintiff's UF, ¶ ¶ 77-78. The District, however, points to the fact that Rothwell-Vivian's recommendation for CART was not personally tailored, as she makes that standard recommendation for each of her high school students and had not personally observed K.M. in the classroom. AR000935. Furthermore, Rothwell-Vivian had not considered other data available to the IEP team. AR000922.

Procedural Background

On July 31, 2010, K.M., acting through her Guardian ad Litem, filed a request for an administrative due process hearing ("DPH") before the Office of Administrative Hearings ("OAH") to force the District to provide K.M. with CART services. The DPH was conducted over eight days in April 2010. On June 1, 2010, the ALJ ruled in favor of the District and found that it was not obligated to provide K.M. with CART services. AR001923, ¶ 49. The ALJ further found that Defendant had attempted to assess K.M.'s needs for CART services and that the Individualized Education Program ("IEP") teams appropriately considered K.M.'s request for CART services. AR001918-1920.

On July 10, 2010, K.M. filed her Complaint in this Court. She appeals the ALJ's decision, and asserts claims under Section 504 of the Rehabilitation Act of 1973; the Americans with Disabilities Act; and the Unruh Civil Rights Act.K.M. moves for partial ...

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