UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
September 23, 2011
POWAY UNIFIED SCHOOL DISTRICT,
KATELYN CHENG, BY AND THROUGH HER PARENTS JERRY CHENG AND ANN CHENG, DEFENDANTS.
The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge
ORDER RE: CROSS MOTIONS FOR SUMMARY JUDGMENT
Poway Unified School District challenges the decision of an Administrative Law Judge that K.C., a deaf student, is entitled to "word-for-word" transcription services under the Individuals with Disabilities Education Act. It is the District's position that "meaning-for- meaning" transcription is sufficient.*fn1 K.C., of course, believes that meaning-for-meaning transcription is substantially inferior to word-for-word transcription, and that the Administrative Law Judge got it right.*fn2
I. Legal Background
The Individuals with Disabilities Education Act, or IDEA, requires that "all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A). The Supreme Court defined the contours of a "free appropriate public education," or FAPE, in Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester County v. Rowley, 458 U.S. 176, 203 (1982). Rowley is still controlling, even though IDEA has been amended multiple times since it was decided. "The proper standard to determine whether a disabled child has received a free appropriate public education is the . . . standard set forth by the Supreme Court in Rowley." J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 951 (9th Cir. 2010). It is critical, then, to be clear on the Supreme Court's holding in Rowley.
The Court began by looking directly at the IDEA statute and finding that a FAPE "consists of educational instruction specifically designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child 'to benefit' from the instruction." Rowley, 458 U.S. at 188. The Court then noted that it is access to education, not so much the substance of the education received, that matters. Id. at 192. Indeed, "the Act imposes no clear obligation upon recipient States beyond the requirement that handicapped children receive some form of specialized education." Id. at 195. This "specialized education" need not provide disabled students with "every special service necessary to maximize [their] potential," but rather a "basic floor of opportunity" and "some educational benefit." Id. at 199--200. So long as a disabled student is able to benefit educationally from a school, that school has provided her with a FAPE. Id. at 203.
The other major piece of IDEA, in addition to the FAPE requirement, is the Individualized Education Program, or IEP. This is a collaborative effort of the school system and the disabled student's parents, and the process by which a student's FAPE is conceived. See Schaffer v. Weast, 546 U.S. 49, 53 (2005). IDEA requires that all disabled students receive an IEP, 20 U.S.C. § 1414(d)(2), and it must include, among other things, "a statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child." 20 U.S.C. § 1414(d)(1)(A)(i)(IV). The IEP must be "reasonably calculated to enable the child to receive educational benefits." R.P. ex rel. C.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117, 1121 (9th Cir. 2011) (quoting N.B. v. Hellgate Elementary Sch. Dist., 541 F.3d 1202, 1207 (9th Cir. 2008)).
State standards are also part of the IDEA analysis. Rowley, 458 U.S.at 203.*fn3
California law, however, does not require accommodations beyond those required by IDEA. Cal. Educ. Code § 56000(e). If parents are dissatisfied with their child's IEP, they may seek an administrative hearing, referred to as an "impartial due process hearing," pursuant to 20 U.S.C. § 1415(f). And after that hearing, any aggrieved party can bring a civil action in state or federal court. 20 U.S.C. § 1415(i)(2).
II. Procedural History
On May 18, 2009, an IEP was convened to discuss K.C.'s transition from middle school to high school. That IEP lasted through June 9, 2009. K.C.'s IEP team agreed that she should receive transcription services, but it did not specify whether she should receive word-for-word transcription or meaning-for-meaning transcription. K.C.'s parents, who insisted on CART, did not consent to the IEP for this reason. Subsequently, on June 18, they sent an email requesting CART transcription and were informed by letter on June 25 that the District would offer only TypeWell.*fn4 On July 28, 2009 they requested the due process hearing that the District now asks this Court to review. Their request alleged that the District's failure to provide K.C. with CART denied her a FAPE and violated the California Education Code.
An Administrative Law Judge with the Office of Administrative Hearings heard testimony on four days in December and found for K.C.: "[T]he District failed to provide Student a FAPE in the May 18-June 9, 2009 IEP by its failure to provide her with CART in English, Geometry, Biology, and Health classes." (AR 132.) The District was ordered to provide K.C. with CART services immediately. (AR 134.)
The ALJ summarized the law applicable to K.C.'s demand for CART and, in the Court's view, got it mostly right. He explained that "[i]n resolving the question of whether a school district has offered a FAPE, the focus is on the adequacy of the school district's proposed program." (AR 131 (citing Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1314 (9th Cir. 1987).) He further explained that "[a] school district is not required to place a student in a program preferred by a parent, even if that program will result in greater educational benefit to the child." (AR 131.) The ALJ also gave significant attention to Rowley and explained that "the IDEA does not require school districts to provide special education students with the best education available or to provide instruction or services that maximize a student's abilities." (AR 131.) He continued, "school districts are required to provide only a 'basic floor of opportunity' that consists of access to specialized instructional and related services which are individually designed to provide educational benefit to the student." (AR 131--132.) This is all true.
The Court is mildly troubled, however, by the attention the ALJ gave to California special education law without recognizing that it "does not set a higher standard of educating individuals with exceptional needs than that established by Congress under the Individuals with Disabilities Education Act." Cal. Educ. Code § 56000(e). The closest he came was to say "California law creates specific state standards to address the needs of deaf students, including the obligation to provide the pupil with equal opportunity for communication access that must be considered within the Rowley standard." (AR 132.) It is hard to know whether the ALJ actually and improperly relied on California law in reaching his decision, however, because in the "Determination of Issue" section of his decision he doesn't refer back to the relevant law he previously summarized. (AR 132--34.)
Looking past the manner in which the ALJ relied upon California law in ordering the District to provice K.C. with CART, the Court finds that the ALJ applied a higher FAPE standard than the one he recognized was articulated in Rowley. Rather than focus on the adequacy of TypeWell and whether the District's offer would provide K.C. with a "basic floor of opportunity" and "some educational benefit," the ALJ appears to have considered the relative merits of TypeWell and CART and required the transcription service that would benefit her more. He cited the testimony of K.C.'s middle school science and math teacher that CART "would be most beneficial" to her, and the testimony of this teacher and another that K.C. "would benefit greatly from CART."*fn5 (AR 133.) Following a description of the capabilities of CART, he found that "CART is more appropriate than 'meaning-for-meaning' systems in classes which are language-dense instruction with lecture and/or class discussions as the main means of teaching." (AR 133.) Rowley is clear that this isn't the right analysis. K.C. is not entitled to the "most beneficial" accommodation, or the accommodation that will benefit her "greatly." Rowley, 458 U.S. at 199--200. Nor is the relevant question whether CART is "more appropriate" than TypeWell, but rather whether TypeWell would deprive her of the FAPE to which she is entitled under IDEA. The ALJ said "CART was the appropriate transcription service to meet Student's unique needs." (AR 133.)
But again, that misstates the inquiry. CART may be appropriate to meet K.C.'s needs, but it does not follow from that conclusion that TypeWell is inappropriate, and would deny her a FAPE.*fn6 "Even if the services requested by parents would better serve the student's needs than the services offered in an IEP, this does not mean that the services offered are inappropriate, as long as the IEP is reasonably calculated to provide the student with educational benefits." See D.H. v. Poway Unified Sch. Dist., Case No. 9-CV-2621, 2011 WL 883003 at *5 (S.D. Cal. Mar. 14, 2011) (affirming conclusion of ALJ that deaf student was not entitled to CART under IDEA).*fn7 So long as TypeWell confers "some educational benefit" upon K.C., it satisfies IDEA. Mercer Island Sch. Dist., 592 F.3d at 947; see also Hellgate Elementary Sch. Dist., 541 F.3d at 1213 n. 2; K.S. v. Fremont Unified Sch. Dist., Case No. 10-15099, 2011 WL 1362467 at *1 (9th Cir. 2011) (applying "some educational benefit" standard). The ALJ, however, appears to have not asked that question.
In fairness, the ALJ does suggest at the end of his decision that there is something categorically inadequate about TypeWell, wholly apart from the relative superiority of CART. Specifically, he held that due to the density of communication in K.C.'s high school classes and the nature of those classes, TypeWell would deprive her of access to instruction. (AR 134.) This analysis is still slightly off. The "access" Rowley concluded a FAPE must guarantee is access to education, not particular levels of instruction. Indeed, "in seeking to provide such access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful." Rowley, 458 U.S. at 192. "Congress expressly recognize[d] that in many instances the process of providing special education and related services to handicapped children is not guaranteed to produce any particular outcome." Id. (internal quotations omitted).
In addition to the above, the Court is also concerned that the ALJ failed to heed the Supreme Court's holding in Rowley that an IEP "should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade." Rowley, 458 U.S. at 204. His factual findings included "[K.C.] does well academically" and "[K.C.] continued to do well during the eighth grade and received trimester grades for social studies of B-, B, and B; language arts of B, A-, and B; physical education of A, A-, and A; Physical Science of B, B, and B; and Algebra of A-, A-, and A-." (AR 123.) He cited the testimony of K.C.'s math and science teacher that, even without transcription, K.C. could earn an A or B in math and a B in science. (AR 125.) But in finding that K.C. was entitled to CART, the ALJ focused exclusively on the fact that leading up to the May 18, 2009 IEP meeting, when K.C. was receiving no transcription services at all, her grades had been declining.*fn8 (AR 133.)
The proper question under Rowley, however, is not that, but whether TypeWell would enable K.C. "to achieve passing marks and advance from grade to grade."*fn9 Rowley, 458 U.S. at 204.
Finally, while the ALJ referenced all of the accommodations provided to K.C., he appears to have factored only the transcription service offered into the FAPE analysis. In addition to meaning-to-meaning transcription, K.C.'s IEP called for preferential seating in her classrooms, a second set of textbooks at home, copies of teachers' notes when necessary, closed captioning, and a peer note-taker in one of her classes. K.C. was also to be provided with an auditory FM system to presumably amplify sounds, a special laptop for videos with closed captioning, and a closed-captioning decoder. (AR 190.) This must be taken into account. See Poway Unified Sch. Dist., 2011 WL 883003 at *6 (factoring other accommodations provided to hearing-impaired student into the FAPE anaylsis).
The ALJ held a lengthy hearing in this case and worked his way through a dense factual record, and the Court respects his efforts. The Court finds, however, that he simply did not apply the "some educational benefit" standard set forth in Rowley. Instead, as the District suggests, he focused excessively on the relative merits of CART as compared to TypeWell and in so doing "required that the District offer a potential maximizing IEP to the Student." (Dkt. No. 23 at 21.) The ALJ's decision is therefore VACATED, and this matter is referred to him for further proceedings consistent with this Order.*fn10 The parties' cross- motions for summary judgment are DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.