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L. J. v. Pittsburg Unified School District

United States District Court, N.D. California

May 14, 2014

L. J., et al., Plaintiffs,



In this action Plaintiffs L.J., a fifth grade public school student, and Nashira Hudson, L.J.'s mother, seek special education instruction for L.J. ("Student"). In 2012, Defendant Pittsburg Unified School District ("District") concluded on two separate occasions that Student was not eligible for special education. Administrative Law Judge ("ALJ") Margaret Broussard of California's Office of Administrative Hearings denied Student's request for relief from the District's determination of non-eligibility. Plaintiffs appealed the ALJ's ruling to this Court and the parties have filed dueling motions for summary judgment. (Dkt. Nos. 37, 41.) Plaintiffs have also filed a motion to expand the administrative record. (Dkt. No. 39.)

After carefully considering the parties' submissions, and having had the benefit of oral argument on April 17, 2014, the Court GRANTS Plaintiffs' motion to expand the administrative record, GRANTS Defendants' motion for summary judgment, and DENIES Plaintiffs' motion for summary judgment.


A. Evidence in the Record as of the April 2013 Due Process Hearing

Student is currently a general education, fifth-grade student in the Pittsburg Unified School District who has a history of behavioral problems going back to the second grade. During his second grade year (2010-2011), Student's discipline records show 14 to 15 instances of discipline, resulting in three days of suspension. On one occasion, Student told school personnel he wanted to die. By the end of the school year, Student was referred by the District to the Lincoln Child Center ("Lincoln")[1] for counseling services to address Student's anger issues and lack of self-control. Among other things, Lincoln completed a suicide evaluation of Student. Although Student's report card from the end of the 2010-11 school year showed that Student mastered the end-of-year standards for all academic subjects, the report indicated that Student needed improvement in several behavioral areas. Student was diagnosed with ADHD at the end of the school year and began taking Adderall.

For most of his third-grade year, Student was assigned to Lisa Gonzalez in a general education class at Marina Vista Elementary School. Ms. Gonzalez had heard that Student had some behavioral problems the previous year and volunteered to have student in her class. Unfortunately, Gonzalez was unable to control Student's behavior. At some point in the beginning of the third-grade year, the District developed a behavioral support plan ("BSP")[2] for Student. Dr. Tracy Catalde-the District-wide lead for the District's behavioral support system and coordinator of special education and psychological services-began working with Gonzalez and Student in December 2012 or January 2013. Over the course of a few months, Dr. Catalde concluded that Gonzalez was not implementing the BSP with fidelity and Student's unruly behavior continued to escalate. The parties agree, and the ALJ found, that Student needed a consistent, well-structured environment, which Gonzalez was unable to provide.

The District developed a second BSP for Student dated March 9, 2012. The behaviors targeted in the BSP were Student's impulsivity and refusal to follow directions. The impulsive behaviors included calling out, tipping over his desk, throwing the contents of the desk on the floor, getting out of his seat, making noises, leaving the classroom without permission, and pushing and grabbing other students. The impulsive behavior was noted to occur daily, was moderate to severe in intensity, and lasted two to 10 minutes. The refusal to follow rules and directions was noted to occur daily, be moderate in intensity, and last two to 10 minutes, as well.

Student's discipline record shows 16 discipline incidents from the beginning of the 2011-12 school year until the end of March 2012. Student's behavior-which included "punch[ing] [Mrs. Gonzalez] repeatedly in the arm" (AR 366)-resulted in four suspensions for a total of 10 school days.

Sometime also in March 2012, the District proposed moving Student to Heights School where he would be enrolled in a general education behavior class. However, as a result of a settlement agreement reached between Hudson and the District, Student was moved into a non-behavioral class at Los Medanos Elementary School with Mr. Romell Ramos on March 27, 2012. Student was given a one-on-one aide named Brian Aranio, who was assigned to work with Student as a behavioral coach in the classroom. Also pursuant to the agreement, Dr. Sherry Burke was retained to perform an independent psychoeducational assessment and a functional analysis assessment of Student.

Student's BSP was again revised on March 26, 2012 by Dr. Catalde to include more specific and intense behavioral strategies. Dr. Catalde spent six hours training Aranio on how to implement Student's BSP, which included a structured reward system and the use of a teaching view instead of a disciplinary view. Ramos also met with the principal to receive training regarding the effective implementation of Student's BSP.

The parties agree, and the ALJ found, that Ramos' class was very structured. Both Aranio and Ramos implemented the BSP with fidelity, and Student exhibited very few behavioral problems in Ramos' class. The few incidences that did arise did not require removal from class, a referral to the office, or a suspension. As time went on, Student played sports and socialized with other students at recess. Ramos felt that Student was successful in his class academically and behaviorally. Catalde, who observed Student in Ramos' class on more than 10 occasions, testified that the comparison between Student's behavior in Gonzalez's class and Ramos' class was "[n]ight and day." (Dkt. No. 61-4, 199:14.) Catalde credited the dramatic improvement to Ramos' structured classroom and dedication to the BSP, which sought to lessen Student's attention-seeking impulsive behavior. Catalde opined that, in contrast to Ramos, Gonzalez gave Student lots of attention and proximity when Student misbehaved. This nurturing inadvertently reinforced Student's problematic behaviors.

Although Aranio remained in the classroom with Student for the rest of the third-grade year, at some point "[s]hortly after" Student arrived in Ramos' class, Aranio was able to "fade back" and did not need to intervene with Student as often. (AR 558 ¶ 17.) "At some point, " Ramos took over the implementation of the BSP on his own. ( Id. ¶ 19.)

Student's report card from the end of the year showed that he achieved end of year mastery, or was approaching end of year mastery, in all academic areas with the exception of two of the ten number sense standards, and one of the algebra and functions standards. For those areas, Student was making progress toward end of year mastery. Student received a satisfactory in all areas of citizenship and social growth.

Burke completed her psychoeducational assessment of Student in early May 2012 and presented her report at the individualized educational program ("IEP") meeting on May 30, 2012. The purpose of the IEP meeting was to determine whether Student was eligible for special education. In creating her report, Burke met with Student twice at her office and made one school observation. She interviewed Hudson, Ramos, and Aranio. She also read Student's educational file, including Student's disciplinary reports. Among other things, Student told Burke that Aranio had taught him how to stay calm and keep out of trouble. He also told Burke that he made a lot of new friends at school.

Dr. Burke's assessment summarized that Student presents as a bright and happy child who is verbally expressive. She stated that Student is "clearly experiencing impulsivity in the school environment" and anger management issues in the home. (AR 459.) She feels that Student is highly impulsive which has resulted in a negative impact on peer relationship development. She stated that it has also negatively affected his academic progress in that he is missing direct instruction and access to core curriculum when misbehaving, although his academic achievement has not been impacted. At the hearing in front of the ALJ, Burke clarified that her comments about his misbehavior and missing instruction did not refer to Student at the time the assessment was completed but from reports of earlier behavioral incidents prior to Student's placement in Ramos' classroom.

Burke's and Catalde's opinions as of the May 30 IEP meeting were that Student was not eligible for special education. At the ALJ hearing, Catalde explained that Student had the capacity to acquire and use the skills necessary to display appropriate school behavior. In his experience, Student could turn his behavior around when given structure in the general education environment. Dr. Catalde further testified that Student needs a general education teacher who runs a highly structured class that is routine-bound, a teacher who is willing to take the time and form a relationship with Student, and one who is willing to be coached and follow Student's behavior plan.

The May 30 IEP team, which included Student's parents, determined that Student did not meet the eligibility criteria for special education under specific learning disability, other health impaired, or emotional disturbance. Right before the meeting-on either May 29 or in the early morning of May 30-Student was admitted by his parents to a psychiatric hospital. Hudson informed the school principal of Student's hospitalization just prior to the IEP meeting. It does not appear, however, that Student's parents informed anyone at the IEP meeting of Student's hospitalization. It appears Student remained hospitalized for at least one week, and missed school that entire time. (AR 397.)

While Student was out of school during the summer, he was hospitalized two more times for threats of harm to himself or others. Student was diagnosed with a Mood Disorder, not otherwise specified, following these hospitalizations and began taking several new medications. Hudson notified the District of these hospitalizations on August 23, 2012. In response, the District asked Hudson to sign a new assessment plan so that Burke could reevaluate Student based on the new information.

In the fall of 2012, Student was enrolled at Willow Cove Elementary School due to District overflow issues. Student was assigned to Mr. Aaron Hatfield's general education fourth-grade class. Willow Cove's principal informed Hatfield of Student's behavioral problems and told Hatfield that he wanted Student placed in his class because of Hatfield's experience working with behaviorally problematic students. Although Student was given neither a behavioral aide nor a BSP, Hatfield put in place an intervention plan specifically for Student. The plan revolved around allowing Student to take "short breaks" when he felt himself becoming upset. Hatfield explained that "[s]hort breaks for [Student] is whenever he feels like he's starting to lose control of himself, he can just-or when he can't handle a certain situation, he'll take himself out of the situation and go take a time out for a few minutes and then come back." (Dkt. No. 61-3 at 29:16-20.) Hatfield further explained that when Student took these timeouts-which occurred "maybe four or five times" between the beginning of the school year and early April 2013 ( id. at 31:6-7)-he would walk to the office with his school work. Student would stay in the office for approximately 15 to 20 minutes. Hatfield also testified that his interventions with Student were consistent with a later-developed "504 plan"[3] that included placing Student in small groups and maintaining Student's proximity to Hatfield.

On September 25, 2012, Student was suspended for two days for an incident on the playground that ended with him throwing rocks at the principal, trying to hit him, and briefly leaving school grounds. He also said he was going to kill the principal. No other behavioral incidents were reported prior to the October 9, 2012 IEP meeting.

At the hearing before the ALJ in April 2013, Hatfield testified that he "loved having [Student] in [his] room... he is a big part of the room." (Dkt. No. 61-3 at 42:5-6.) He stated that Student "is really into it... he wants to be part of the classroom, he wants to learn." ( Id. at 42:3-5.) Hatfield further stated that "[Student] is just like all the other kids, I mean, he has friends, he plays." ( Id. at 48:4-5.) In Hatfield's opinion, Student "is growing to be a great young adult." ( Id. at 46:23-24.) Academically, Student was performing at grade level or above.

Burke conducted her second assessment of Student, which included one day of in-school observation on September 21, 2012. Overall, Burke found Student's behavior unremarkable. Her testing, however, found that Student had limited insight into his past behavior problems and showed a tendency to minimize his actions. Burke concluded that Student's behavioral problems-which she deemed are more prevalent in the home than at school-"continue[d] to be best explained by his ADHD, ODD, and the secondary social problems associated with these diagnoses." (AR 487.) Burke further concluded that Student "has not yet mastered strategies for dealing with his anger, nor is he able to self-soothe or deescalate when angry." ( Id. ) Burke found that Student was not eligible for special education under the category of emotional disturbance, the only category Burke considered. Among other things, Burke concluded that Student's "school-based" reactions were not "out of proportion" to the circumstances Student encountered. ( Id. at 488.)

As part of her second assessment, Burke spoke with Anitra Clark, a licensed clinical social worker with Kaiser Permanente Child and Family Psychiatry Clinic whom Student had been seeing intermittently since his psychiatric hospitalizations. Clark shared her concerns with Burke regarding Student's escalating behaviors at home and in her office. She worried that Student's unpredictable behavior may continue to make Student a danger to himself and his family. She noted that Student requires a well-structured environment. Clark opined that Student would benefit from additional support at home and school and placement in a therapeutic program or school. Clark, however, was unsure how Student was functioning in the school environment and did not know Student's educational needs.

The IEP team met again on October 9, 2012 to determine whether Student was eligible for special education as a student with an emotional disturbance. Student's grandmother attended the meeting, but Hudson did not. Burke's updated assessment was reviewed and discussed. Although the team found that Student was not suffering from an emotional disturbance, the team noted that Student needed to develop self-soothing strategies and referred Student to Lincoln for counseling through the general education program.

B. The ALJ's Findings

The issues before the ALJ included whether the District denied Student a free appropriate public education ("FAPE") by failing to make him eligible for special education and related services at the May 30, 2012 and October 9, 2012 IEP team meetings. The ALJ also considered whether the District denied Student a FAPE by failing to adhere to certain procedural requirements, such as failing to provide certain comprehensive assessments and failing to include Hudson in the decision-making process.

The ALJ concluded that Student had failed to demonstrate that he qualified for special education under any category at the time of either IEP meeting. The ALJ concluded that Student failed to qualify under the category of specific learning disability ("SLD") because "[t]here was no evidence that Student had a severe discrepancy between his intellectual ability and academic achievement." (AR 564 ¶ 43.) While Student's teachers testified that Student may be able to achieve proficient or advanced scores on STAR testing, that alone was not enough to establish a severe discrepancy between achievement and ability.

Regarding eligibility under the category of other health impairment ("OHI"), the ALJ concluded that

the uncontroverted testimony of Mr. Ramos, Mr. Aronio, and [Mr. Hatfield], who all had observed Student in the classroom environment, established that Student was no more distractible than his classmates. He could easily be redirected back to attention with general education supports that his teachers used with all students, and none of these individuals, or others who had observed Student saw him to be drowsy or otherwise exhibiting the side effects of medication that Parent described. Student did not present any evidence from anyone who observed Student in class that his ADHD or medication side effects adversely affected his educational performance.

( Id. at 564 ¶ 46.) The ALJ further stated that:

[t]he evidence shows that from the time Student was placed in Mr. Ramos' class on March 27, 2012, his behavior was well within the parameters of general education students. The presence of the behavioral coach is noted and considered, but by the time of the IEP team meeting, the behavioral coach was faded back considerably, and Student was under the instructional and behavioral control of his general education teacher. Student attempts to rely upon past behaviors that were no longer occurring to support his contention that he met the criteria for OH[I]. However, eligibility is determined at the ...

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