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Poway Unified School District v. the K.C. By and Through Her Guardian Ad Litem

March 13, 2013

POWAY UNIFIED SCHOOL DISTRICT,
PLAINTIFF,
v.
THE K.C. BY AND THROUGH HER GUARDIAN AD LITEM, CASE ANNA CHENG, DEFENDANT



The opinion of the court was delivered by: Hon. Gonzalo P. Curiel United States District Judge

ORDER DENYING COUNTERCLAIMANT'S MOTION FOR SUMMARY JUDGMENT AS TO IDEA CLAIM AND SUA SPONTE STAYS AND RELATED COUNTERCLAIM [Dkt. No. 54.]

K.C., a high school student with profound hearing loss, filed a counterclaim against Poway Unified School District challenging the ALJ's decision on remand concluding that the District was not required to provide K.C. with Communication Access Real-Time Translation ("CART")*fn1 transcription service under the Individuals with Disabilities Education Act ("IDEA"). On August 22, 2012, K.C. filed a motion for summary judgment on all causes of action in the first amended counterclaim. (Dkt. No. 54.) Based on the reasoning below, the Court DENIES K.C.'s motion for summary judgment on the IDEA claim and sua sponte STAYS the remainder of the case pending resolution of the issues in K.M. v. Tustin Unified Sch. Dist., No. SACV 10-1011, 2011 WL 2633673 (C.D. Cal. July 5, 2011); and D.H. v. Poway Unified Sch. Dist., No. 09cv2621-L(NLS) (S.D. Cal. June 12, 2012) currently on appeal with the Ninth Circuit.

Procedural Background

On April 28, 2010, Plaintiff Poway Unified School District ("District") filed a complaint for reversal of due process decision against Defendant K.C., by and through her Guardian Ad Litem, Anna Cheng pursuant to the IDEA, 20 U.S.C. § 1400 et seq. (Dkt. No. 1.) District sought judicial review of Administrative Law Judge ("ALJ") Robert Helfand's decision, dated January 29, 2010, requiring District to provide K.C. with CART. On June 25, 2010, K.C. filed a counterclaim alleging violations of Section 504 of the Rehabilitation Act of 1973; violation of the Americans with Disabilities Act ("ADA"); and violation of the Unruh Civil Rights Act. (Dkt. No. 7.) The parties filed cross motions for summary judgment. (Dkt. Nos. 22, 23.) On September 26, 2011, District Judge Larry A. Burns issued an order vacating the ALJ's decision and referred the matter back to the ALJ for further proceedings. (Dkt. No. 40.) The parties' cross-motions for summary judgment were denied without prejudice. (Id.)

On May 21, 2012, on remand, ALJ Marian Tully found in favor of District and concluded that K.C. failed to show that CART was required to provide her with a free appropriate public education ("FAPE"). The parties returned to this Court. On June 20, 2012, K.C. filed a motion to amend her counterclaim which was granted. (Dkt. Nos. 46, 47.) On July 13, 2012, K.C. filed an amended counterclaim alleging claims under the ADA, Unruh Civil Rights Act, Section 504 of the Rehabilitation Act of 1973, and reversal of the Office of Administrative Hearing ("OAH") decision. (Dkt. No. 50.) On August 3, 2012, K.C. filed a motion for preliminary injunction requiring District to continue to provide her with CART while her appeal under the IDEA is pending. (Dkt. No. 52.) On August 18, 2012, the parties filed a stipulation where District agreed to provide K.C. with CART while her IDEA claim is pending in this Court. (Dkt. No. 53.) On August 22, 2012, K.C. filed a motion for summary judgment on all claims in the amended counterclaim.*fn2 (Dkt. No. 54.) On October 22, 2012, the case was transferred to the undersigned judge. (Dkt. No. 55.) District filed an opposition on November 30, 2012. (Dkt. No. 57.) K.C. filed a reply on December 14, 2012. (Dkt. No. 59.)

Factual Background

At the time of the due process hearing, in December 2009, K.C. was a 15 year old girl, with profound hearing loss in both ears, attending general education classes in the Poway Unified School District. K.C.'s hearing loss occurred at the age of five months as a result of meningitis. K.C. received a cochlear implant*fn3 in her right ear at 22 months. She wore a hearing aide in the left ear until she received a cochlear implant in her left ear around the end of April 2009. In July 2009, K.C.'s audiologist concluded that K.C. hears about 52 percent of what is said in real-life situations.

On May 18, 2009, and continuing again on June 9, 2009, an individualized education program ("IEP") meeting was convened to discuss K.C.'s transition from middle school to high school. In attendance at the meeting were parents, program specialists Jodie Payne and Geralyn Murray; Deaf and Hard of Hearing ("DHH") itinerant teachers Carol Reeves and Ms. Simpson; Ms. Suennen; Ms. Mehaffie; Ms. Ugalde; and Kelly Burke, an assistant principal at the High School. (Supp. AR 570; AR 187.) At the meeting, parents requested CART transcription service. (Supp. AR 570.) After discussing K.C.'s performance in school, her goals, needs, services, accommodations, supplemental aids and services, assistive technological devices and services, communication strategies, teacher comments, and parent comments and requests, (AR 187-97), the May 18, 2009 IEP offered the following: DHH Language and Speech, Resource Specialist Program Learning Strategies class; preferential seating; a second set of text books for the home; copies of teacher's notes when necessary; closed captioning for media; peer note taker in Health class; personal auditory FM system*fn4 ; laptop for streaming closed captioned videos; closed caption decoder; visual presentation of new materials and vocabulary; and directions to teachers to face K.C. when speaking. (Supp. AR 570.) It also determined transcription would be provided in English, Geometry and Biology; however, it did not specify which program it would utilize. (Supp. AR 570.) Parents refused to consent to the IEP and requested that the type of transcription service be designated in the IEP.

On June 9, 2009, the IEP meeting was reconvened to discuss which type of transcription system would be provided to K.C. (Supp. AR 571.) Parents sought CART for K.C. Ms. Simpson informed parents with District had communicated with other school districts about CART and described a student from one district who switched from CART to "meaning-for-meaning" system because he was overwhelmed by the amount of information presented in the verbatim format. (Supp. AR 571.) Ms. Simpson concluded "meaning for meaning" system was appropriate for K.C. (Supp. AR 571.) District concluded that K.C. would benefit from transcription services but IEP team did not specify the modality or specific program. (AR 198.) Parents did not consent to the IEP. (AR 200.)

K.C. filed a due process complaint with Office of Administrative Hearing ("OAH") against District pursuant to 20 U.S.C. § 1415 and California Education Code section 56500 et. seq. An administrative hearing was held and evidence presented. On January 29, 2010, ALJ Helfand granted the student's request and ordered that District provide the student with CART services in English, Health, Geometry and Biology classes immediately. (AR 120-134.) District appealed the ALJ's decision and filed a complaint in this Court on April 28, 2010. District Judge Burns vacated the ALJ's decision and remanded the matter for further proceedings. On remand, ALJ Tully*fn5 concluded that given the information the District had at the time of the offer of FAPE, District reasonably concluded that TypeWell would provide the student some educational benefit within the meaning of Rowley*fn6 .

The student, therefore, failed to show that CART transcription was required to provide her a FAPE. (Supp. AR 580.)

Discussion

A. Standard of Review

Judicial review under the IDEA is less deferential than in most administrative cases. J.L. v. Mercer Isl. Sch. Dist., 592 F.3d 938-949 (9th Cir. 2010). The IDEA allows the reviewing court to hear evidence that goes beyond the scope of the administrative record and based on a preponderance of the evidence grant such relief as the court deems is appropriate. Anchorage Sch. Dist. v. M.P., 689 F.3d 1047, 1053 (9th Cir. 2012) (citing 20 U.S.C. § 1415(i)(2)(C))*fn7 . However, a complete de novo review is inappropriate. Id. (citing Amanda J. ex rel. Annette J. v. Clark County Sch. Dist., 267 F.3d 877, 887 (9th Cir 2001)). The Court may not substitute its "own notions of sound educational policy for those of the school authorities which they review." Bd. of Educ. of Hendrick Hudson Central Sch. Dist., Westchester County v. Rowley, 458 U.S. 176, 206 (1982). Because states have the primary responsibility of formulating each child's education, the administrative proceedings are accorded "due weight" and the reviewing court must consider the findings carefully. Anchorage Sch. Dist., 689 F.3d at 1053. After such consideration, the court is free to accept or reject the findings in part or in whole. Ash v. Lake Oswego Sch. Dist., No. 7J, 980 F.2d 585, 587--88 (9th Cir. 1992) (citations omitted). Ultimately, the weight accorded the administrative findings is a matter within the discretion of the reviewing court. Id.; Ojai Unified ...


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