Abdella v. Folsom Cordova Unified School District

          FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE

         Plaintiffs Karim Abdella and Patricia Abdella are proceeding pro se in the above entitled action. The action has therefore been referred to the undersigned pursuant to Local Rule 302(c)(21) for all purposes encompassed by that rule.

         On December 16, 2015, the matter came before the undersigned for hearing of plaintiffs' motion for summary judgment and defendant's cross-motion for summary judgment.^[1] Plaintiffs Patricia Abdella and Karim Abdella appeared on their own behalf. Attorney Cynthia Smith appeared on behalf of the defendant.

         Having reviewed the motions for summary judgment, the documents filed in support, the oppositions and replies, and the arguments made at the December 16, 2015 hearing, THE COURT FINDS AS FOLLOWS:

         GENERAL FACTUAL BACKGROUND

         Plaintiffs' child, M.A., has resided within the geographic boundaries of the Folsom Cordova Unified School District, ("District"), at all relevant times. M.A. first qualified for special education and related services in 2005, when M.A. began attending preschool, due to speech or language impairment ("SLI."). Administrative Record ("AR") at 2220. On March 5, 2010, the District, with plaintiffs' consent, developed an Individualized Education Plan, ("IEP"), for M.A., which was implemented on March 10, 2010.^[2] Id. at 1619.

         On May 13, 2011, plaintiffs and the District attended M.A's IEP team meeting. Id. at 1644. At the May 13, 2011 IEP meeting the District recommended that M.A. be exited from special education. Id. at 1656. Plaintiffs did not consent to the recommendation and the District continued operating under the March 5, 2010 IEP. Id. at 2824-26. Another IEP team meeting was held on September 23, 2011. Id. at 1665. Plaintiffs did not consent to the recommendations made at the September 23, 2011 IEP meeting and the District continued operating under the March 5, 2010 IEP. Id. at 3495. On April 27, 2012, another IEP team meeting was held. Id. at 3807. Plaintiffs consented to the April 27, 2012 IEP recommendations on July 23, 2012. Id. at 2096.

         On April 3, 2013, plaintiffs filed a complaint for an Administrative Due Process Hearing with the Office of Administrative Hearings ("OAH"). Id. at 34. On May 9, 2013, the parties entered into an interim settlement agreement. Id. at 2127-28. On August 23, 2013, another IEP team meeting was held. Id. at 3857. Plaintiffs did not consent to the August 23, 2013 IEP recommendations. Id. at 3076, 3255. On September 6, 2013, the District filed a complaint for an Administrative Due Process Hearing with the OAH, which was consolidated with plaintiffs' complaint filed April 3, 2013. Id. at 343. Hearings were held before an Administrative Law Judge, ("ALJ"), on December 16-20, 2013, and January 7-8, 2014. Id. at 2217. On February 24, 2014, the ALJ issued a decision finding in favor of the District on all but one issue. Id. at 2217-69.

         Plaintiffs filed this action on May 22, 2014. ECF No. 1. On September 25, 2015, the parties filed their motions for summary judgment. ECF Nos. 34 & 37. On October 9, 2015, the parties filed their respective oppositions. ECF Nos. 41 & 45. Replies were filed on October 16, 2015. ECF Nos. 46 & 47.

         LEGAL STANDARDS

         The goal of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., is "‘to ensure that all children with disabilities have available to them a free appropriate public education [or ‘FAPE'] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.'" A.G. v. Paradise Valley Unified School Dist. No. 69, 815 F.3d 1195, 1202 (9th Cir. 2016) (quoting Mark H. v. Lemahieu, 513 F.3d 922, 928 (9th Cir. 2008)). "The IDEA provides for a cooperative process between parents and schools that culminates in the creation of an IEP for every disabled student." M.M. v. Lafayette School Dist., 767 F.3d 842, 851 (9th Cir. 2014). "The IEP must be reasonably calculated to provide the student with some educational benefit, although the IDEA does not require school districts to provide special education students with the best education available, or provide instruction services that maximize a student's abilities." Covington v. Yuba City Unified School Dist., 780 F.Supp.2d 1014, 1020 (E.D. Cal. 2011) (citing Board of Educ. of Hendrick Hudson Central School Dist., Westchester County v. Rowley, 458 U.S. 176, 198-200 (1982)).

         "In the event a student's parents believe that the district is not complying with the IDEA's procedural or substantive requirements, statutory safeguards entitle the parents to ‘an impartial due process hearing' conducted either by the state or local educational agency.'"^[3] Cupertino Union School District v. K.A., 75 F.Supp.3d 1088, 1091 (N.D. Cal. 2014) (quoting Ojai Unified School Dist. V. Jackson, 4 F.3d 1467, 1469 (9th Cir. 1993)). "Any party aggrieved by the findings and decision" reached by a due process hearing decision "shall have the right to bring a civil action with respect to the complaint . . . in a district court of the United States."^[4] 20 U.S.C. § 1415(i)(2).

         After the commencement of such a civil action, the court "(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." Id. "[C]omplete de novo review of the administrative proceeding is inappropriate." Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 817 (9th Cir. 2007). "[T]he burden of persuasion rests with the party challenging the ALJ's decision." L.M. v. Capistrano Unified School Dist., 556 F.3d 900, 910 (9th Cir. 2009).

         "Because Congress intended states to have the primary responsibility of formulating each individual child's education, this court must defer to their ‘specialized knowledge and experience' by giving ‘due weight' to the decisions of the states' administrative bodies.'" Hood v. Encinitas Union School Dist., 486 F.3d 1099, 1104 (9th Cir. 2007) (quoting Amanda J. ex rel. Annette J. v. Clark Cnty. Sch. Dist., 267 F.3d 877, 888 (9th Cir. 2001)). "‘How much deference to give state educational agencies, however, is a matter for the discretion of the courts.'" J.W. ex rel. J.E.W. v. Fresno Unified School Dist., 626 F.3d 431, 438 (9th Cir. 2010) (quoting Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1311 (9th Cir. 1987)). Nonetheless, the amount of deference given should increase when the administrative decision is "‘thorough and careful[.]'"^[5] Ashland School Dist. v. Parents of Student R.J., 588 F.3d 1004, 1008-09 (9th Cir. 2009) (quoting Seattle School Dist., No. 1 v. B.S., 82 F.3d 1493, 1499 (9th Cir. 1996)); see also Capistrano, 556 F.3d at 908 ("A district court shall accord more deference to administrative agency findings that it considers ‘thorough and careful.'"). Moreover, courts "are not free ‘to substitute [our] own notions of sound educational policy for those of the school authorities which [we] review.'" Amanda J., 267 F.3d at 887-88 (quoting Rowley, 458 U.S. at 206).

         ANALYSIS

         Plaintiffs' motion for summary judgment asserts the following five arguments.

         1) Failure to Disclose Relevant Records

         Plaintiffs assert that the District violated their right to "meaningful participation" in the development of M.A.'s May 13, 2011, September 27, 2011, and April 27, 2012 IEP's by failing to provide plaintiffs with copies of all of M.A.'s testing results. ECF No. 37 at 10.^[6] Specifically, plaintiffs argue that the defendants failed to provide plaintiffs with a copy of a "Conners 3-Teacher Assessment Report, " ("Conners-3 Report"), administered by Bob Winford, M.A.'s teacher, on April 29, 2011. Id. According to plaintiffs, the Conners-3 Report, "showed the probability that M.A. had Attention Deficit Disorder-Inattention . . . ." Id. at 8.

         As explained in the ALJ's February 24, 2014 decision:

The Conners-3 rating scale for teachers sets forth 115 statements about a student's recent behavior, such as she "gets overly excited" or "has a short attention span." A teacher is asked to respond to each statement by marking "not at all/never, " "just a little true/occasionally, " "pretty much true/often, " or "very much true/frequently." The teacher's responses are then combined into 8 categories (such as inattention and aggression) and compared to the responses expected for students of the test subject's age and gender. The grouped responses are then ranked as low, average, high average, elevated, or very elevated. An "elevated" score means, according to the test publisher, "more concerns than are typically reported" and indicates that "problems ... may exist." A "very elevated" score means "many more concerns than are typically reported." Mr. Winford's responses produced both some elevated and very elevated scores.

AR at 2223.

         The ALJ rejected plaintiffs' claim, finding that the Conners-3 Report completed by Mr. Winford was "professional work product provided for use by the clinician in interpreting his scores, " and was not something "traditionally given to parents because, among other reasons, they are potentially misleading to people not professionally trained." Id. In this regard, the Conners-3 Report was simply part of the "underlying protocols [that] are not considered assessment results but are simply worksheets and raw data, " that form the basis for a psychoeducational assessment. Id. at 2222-23. Specifically, the Conners-3 Report completed by Mr. Winford was part of a May 13, 2011 psychoeducational assessment conducted by Dr. Arthur Singer. Id. at 2222.

         Moreover, the ALJ found that Dr. Singer's May 13, 2011 psychoeducational assessment "accurately summarized the information in the protocols, and did not omit anything significant." Id. at 2223. The ALJ further found that "Dr. Singer . . . attached to his report two pages of charts showing in graphic form the detailed scores for each rater, including those for Mr. Winford, " and that plaintiffs did "not identify anything in the protocols that is not accurately summarized in Dr. Singer's final report." Id.

         Plaintiffs' argument that they should have been provided a copy of Mr. Winford's Conners-3 Report is not entirely without support. One of the procedural safeguards established by the IDEA is the provision of "[a]n opportunity for the parents of a child with a disability to examine all records relating to such child . . . ." 20 U.S.C. § 1415(b)(1). The Ninth Circuit has held that "[e]xamination of records by parents is critical to the development of an IEP." Lafayette, 767 F.3d at 855; see also Amanda J., 267 F.3d at 891 ("Among the procedural rights guaranteed to parents by the IDEA is the right to examine all relevant records with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to such child."). The failure to provide such records to parents can, under some circumstances, constitute a violation of the IDEA. See Lafayette, 767 F.3d at 853 ("District violated the IDEA by failing to . ...