United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE
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.
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. Plaintiffs Patricia Abdella and Karim
Abdella appeared on their own behalf. Attorney Cynthia Smith
appeared on behalf of the defendant.
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:
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. Id. at 1619.
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.
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.
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.
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)).
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.'" 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." 20 U.S.C. § 1415(i)(2).
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).
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[.]'" 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).
motion for summary judgment asserts the following five
Failure to Disclose Relevant Records
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
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.
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.
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.
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.
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 . ...