United States District Court, N.D. California
S. H., et al., Plaintiffs,
MOUNT DIABLO UNIFIED SCHOOL DISTRICT, Defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT Re: Dkt. Nos. 28, 29
C. SPERO Chief Magistrate Judge
action, Plaintiff S.H. seeks judicial review of an
administrative decision of California's Office of
Administrative Hearings (“OAH”) under the
Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. §§ 1400 et
seq. Presently before the Court are cross-motions for
summary judgment by S.H. and the Mount Diablo Unified School
District. A hearing on the motions was held on June 2, 2017.
Following the hearing, the parties filed supplemental briefs
addressing the question of what remedy the Court should award
if it found that S.H. was entitled to summary judgment with
respect to any of the alleged errors on the part of the OAH.
For the reasons stated below, the Court GRANTS
Plaintiff's Motion for Summary Judgment
(“Plaintiff's Motion”) and DENIES
Defendant's Motion for Summary Judgment
(“Defendant's Motion”). The parties have
consented to the jurisdiction of the undersigned United
States magistrate judge pursuant to 28 U.S.C. § 636(c).
case involves challenges to an Individualized Educational
Plan (“IEP”) dated October 14, 2015 relating to
the 2015-2016 school year. As of that date, S.H. was fifteen
years old. AR 603-604. S.H. resides with his mother, Ms.
Eleasha Partner (“Mother”) within the
geographical boundaries of Mt. Diablo Unified School District
(“Mt. Diablo”) and is eligible for special
education under the category of speech and language
impairment. AR 603. He has been eligible for special
education since he was three years old. Id.
the 2014-2015 school year, S.H. attended ninth grade at Las
Lomas High School (“Las Lomas HS”), in the
Acalanes Union High School District (“Acalanes”).
AR 605, 607. When he started ninth grade at Las Lomas HS,
S.H. was receiving services pursuant to an IEP developed on
February 27, 2014, when he was in eighth grade. Id.
Acalanes held an annual IEP team meeting on March 25, 2015,
in the spring of S.H.'s ninth grade year. AR 607. The IEP
developed in connection with that meeting (“the March
25, 2015 IEP”) described S.H.'s levels of
performance, set forth goals and proposed a transition plan.
AR 609. It offered as accommodations “use of notes for
tests/assignments when needed and appropriate; use of
calculator when needed and appropriate; flexible seating on
tests; extended time on class assignments/tests; instructions
repeated/rephrased; preferential seating; prompting and
refocusing; and speech to text as an option when
applicable.” AR 610. It also offered specialized
academic instruction for 50 minutes, one time each school
day, language and speech services for 40 minutes a week
(individual and group boxes were checked), college awareness
for 30 minutes a month and career awareness for 30 minutes a
month. Id. Mother did not consent to the March 25,
2015 IEP because she did not believe it met S.H.'s needs
and did not sign it. AR 610, 778.
2015, S.H. was diagnosed with Autism Spectrum Disorder. AR
610. Around this time, Mother filed a due process complaint
against Acalanes seeking an independent educational
evaluation (“IEE”) at public expense.
Id. That complaint was settled in June 2015, with
Acalanes agreeing to pay for an IEE. Id. Mother
selected Dr. Elea Bernou to perform the IEE and scheduled the
evaluation to be conducted in the early fall of 2015, which
was the earliest Dr. Bernou could complete it because she was
already “booked” until the third week of August.
AR 507, 610.
the spring of 2015, Mother began looking for other options
for S.H. because she felt that his placement at Acalanes was
not working. AR 788. Around April 2015, S.H. applied to Orion
Academy (“Orion”), a state-certified non-public
school in Moraga California, and he was accepted in May. AR
610-611. The tuition for the 2015-2016 school year was $33,
500. AR 611. Mother entered into a tuition contract with
Orion and by July 7, 2015, she had paid $19, 230 in tuition,
much of which S.H.'s grandmother had borrowed from her
retirement fund to pay. Id. In November 2015 Mother
entered into a payment plan for the remainder of the tuition,
which was to be paid in installments in December 2015,
February 2016 and March 2016. Id. To help pay for
Orion and as part of an agreement with S.H.'s
grandmother, Mother and S.H. moved to less expensive housing
in Concord, California, in the Mt. Diablo Unified School
District, on July 31, 2015. AR 612.
began school at Orion on August 6, 2015, when Orion's
school year began. Id. This was during the summer
break after the school year had ended in Acalanes and before
the public high school in Mt. Diablo (Mt. Diablo High School,
or “MDHS”) had started. Id. At the
recommendation of Dr. Kathryn Stewart, the executive director
of Orion, S.H. was enrolled there as a ninth grader. AR
first day of school at MDHS was August 26 or 27, 2015. AR
612. A day or two before that, on August 24 or 25, 2015,
Mother filled out registration paperwork to enroll S.H. at
MDHS. AR 615. She checked a box indicating that S.H. was in
special education. Id. Mt. Diablo asked for a copy
of S.H.'s most recent IEP and Mother provided a copy of
the March 25, 2015 IEP without a signature page. Id.
It appears to be undisputed that Mother did not alert anyone
at Mt. Diablo at that time that she had not consented to the
March 25, 2015 IEP. AR 615. Nor is there any evidence in the
record that Mt. Diablo asked Mother to supply the signature
page or if she had consented to the March 25, 2015 IEP.
August 25, 2015, Mother told the MDHS registrar that she had
privately placed S.H. at Orion. AR 615. On August
27, 2015, Mother emailed several Mt. Diablo employees
informing them that she had enrolled S.H. at MDHS and was
requesting an IEP meeting to be conducted in October 2015.
Id. She requested the October date so that Dr.
Bernou's IEE would be complete by the time of the IEP
meeting. AR 832. Apparently, MDHS employees believed that
S.H. would begin attending MDHS at the commencement of school
year, creating a schedule for him and initially marking him
absent when he did not show up to school. AR 615-616. On
September 4, 2015, the MDHS vice-principal, Nichole Hackett,
contacted Mother to let her know that S.H. had a schedule at
MDHS that included two special education classes and two
classes supported by special education staff. AR 616. Mother
responded that she wanted to wait and see what services MDHS
would be able provide so she could compare them with the
services being provided at Orion before moving S.H. to MDHS.
Bernou completed her written report on October 7, 2015. AR
617. Among other things, she recommended that S.H. receive 45
minutes per week of individual speech/language services and
45 minutes per week of group speech/language services. AR
October 14, 2015, Mt. Diablo held an IEP team meeting in
order to consider Dr. Bernou's evaluation and develop
interim placement and services for S.H. for a 30-day period.
AR 621. In attendance were Mother, Dr. Bernou, Case Manager
Dr. Beth Dela Cruz, Ms. Hackett, and school psychologist
Jennifer Steinbeck. AR 140. Because Mt. Diablo considered the
meeting to be an interim IEP meeting, the team did not
address S.H.'s goals. AR 1084. No general education
teacher participated in the meeting, and Mother and Ms.
Hackett signed a form stating, in part:
By mutual agreement between the parent/adult student, and
designated representative of the local education agency, the
presence and participation of the Individual Education
Program team member(s) identified below is/are not necessary
and has/have been excused from being present and
participating in the meeting scheduled on 10/14/15 because
(1) the member's area of the curriculum or related
services is not being modified or discussed in the meeting or
(2) the meeting involves a modification to or discussion of
the member's area or related services and the member
submitted, in writing to the parent and the IEP team, input
into the development of the IEP prior to the meeting.
AR 144. Handwritten in the space left for listing the names
of the missing team members was written: “Regular
education teachers have been excused due to no definite class
team decided to offer S.H. the services and placement in the
March 25, 2015 IEP with some modifications based on Dr.
Bernou's evaluation. AR 621. Under the heading
“Offer of Services by MDHS” a list of bullet
points described the services to be provided. AR 141. One of
the bullet points states: “Speech and Language: 40
minutes a week” without any elaboration as to whether
this instruction would be in a group or individual setting.
Id. The IEP states that the team planned to hold
another IEP team meeting “to give Mom time to further
consider options - from MDHS and from Orion.” AR 142.
Mother did not consent to the October 14, 2015 IEP
October 21, 2015, S.H.'s attorney sent a “Notice of
Intent to Place at Orion Academy.” AR 348. That letter
states that Mt. Diablo's “current offer of
placement . . . is not appropriate.” Id. The
letter further informed Mt. Diablo that S.H. would remain at
Orion and that Mother would “seek reimbursement from
the district for the costs of this appropriate
program.” Id. The next day, Mother filed a due
process hearing request with the Office of Administrative
Hearings (“OAH”). AR 603.
following issues were raised in S.H.'s due process
Student's Issue I: Did Mt. Diablo commit the following
procedural violations, which denied Student a free
appropriate public education for the 2015-2016 school year:
a. failing to make a formal, specific written offer of [free
appropriate public education (“FAPE”)] in the
October 14, 2015 individualized education program document;
b. failing to include any goals in the October 14, 2015 IEP
c. only offering Student interim services in the October 14,
2015 IEP; and
d. failing to have all required IEP team members present at
the October 14, 2015 IEP meeting?
Student's Issue 2: Did Mt. Diablo deny Student a FAPE in
the October 14, 2015 IEP, designated as an interim IEP by Mt.
Diablo, by failing to offer Student an appropriate placement?
AR 603-604. The OAH issued a decision on May 2, 2016 in which
it found in favor of S.H. on issues 1.a and 1.d and in favor
of Mt. Diablo on the remaining issues. AR 603-639.
instant motions, each side seeks summary judgment on the
issues on which it did not prevail in the administrative
proceeding. In particular, S.H. asks the Court to hold on
summary judgment that Mt. Diablo acted unlawfully when it
completed an interim IEP that did not include any goals in
October 2015 and that Mt. Diablo denied S.H. a FAPE by doing
so. Mt. Diablo, in turn, asks the Court to hold that the
interim IEP offer of speech and language services was
sufficient (Issue 1.a) and that it was lawful for Mt. Diablo
to hold the October 14, 2015 team meeting without the
participation of a general education teacher (Issue 1.d).
enacted the IDEA in order “to ensure 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 IDEA defines “free and appropriate public
education” as “special education and related
(A) have been provided at public expense, under public
supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or
secondary school education in the State involved; and
(D) are provided in conformity with the individualized
education program required under section 1414(d) of this
20 U.S.C. § 1401(9).
IDEA establishes a framework in which parents and schools
engage in a cooperative process culminating in the creation
of an IEP for every disabled student. 20 U.S.C. § 1414;
Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53
(2005). “Each IEP must include an assessment of the
child's current educational performance, must articulate
measurable educational goals, and must specify the nature of
the special services that the school will
provide.” Schaffer, 546 U.S. at 53.
The IEP must be “reasonably calculated to enable the
child to receive educational benefits.” Bd. of
Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley
(“Rowley”), 458 U.S. 176, 207 (1982).
Further, in order to provide special education services under
an IEP, the school district must obtain the informed consent
of the child's parents. 20 U.S.C. § 1414(a)(1)(D).
Parents may also revoke consent to the receipt of special
education services if they do so in writing. 34 C.F.R. §
300.9; Cal. Educ. Code § 56021.1.
the IDEA, the IEP is developed by an “IEP Team.”
See 20 U.S.C. § 1414(d)(1)(B). The IEP team
includes “the parents of a child with a
disability;” “not less than 1 regular education
teacher of such child (if the child is, or may be,
participating in the regular education environment);”
“not less than 1 special education teacher, or where
appropriate, not less than 1 special education provider of
such child;” “a representative of the local
educational agency;” “an individual who can
interpret the instructional implications of evaluation
results, who may be a member of the team” described
above, “whenever appropriate, the child with a
disability.” Id.; see also 34 C.F.R.
§ 300.321. The IDEA provides, however, that “[a]
member of the IEP Team shall not be required to attend an IEP
meeting, in whole or in part, if the parent of a child with a
disability and the local educational agency agree that the
attendance of such member is not necessary because the
member's area of the curriculum or related services is
not being modified or discussed in the meeting.” 20
U.S.C. § 1414(d)(1)(C)(i). In the alternative,
“[a] member of the IEP Team may be excused from
attending an IEP meeting, in whole or in part, when the
meeting involves a modification to or discussion of the
member's area of the curriculum or related services, if .
. .the parent and the local educational agency consent to the
excusal; and . . . the member submits, in writing to the
parent and the IEP Team, input into the development of the
IEP prior to the meeting.” 20 U.S.C. §
1414(d)(1)(C)(ii). Under both of these provisions, the parent
must agree in writing that the participation of the IEP team
member is not required. 20 U.S.C. § 1414(d)(1)(C)(iii).
“is a written statement for each individual with
exceptional needs that is developed, reviewed, and revised in
accordance with [state educational standards], as required by
Section 1414(d) of Title 20 of the United States Code.”
Cal. Educ. Code § 56345(a). It must include: 1)
“[a] statement of the individual's present levels
of academic achievement and functional performance . .
.;” 2) “[a] statement of measurable annual goals,
including academic and functional goals . . .;” 3)
“[a] description of the manner in which the progress of
the pupil toward meeting the annual goals . . . will be
measured and when periodic reports on the progress the pupil
is making . . .will be provided . . .;” 4) “[a]
statement of the special education and related services and
supplementary aids and services . . . to be provided . . .
and a statement of the program modifications or supports for
school personnel that will be provided” so that the
student can attain annual goals; 5) “[a]n explanation
of the extent, if any, to which the pupil will not
participate with nondisabled pupils in the regular
class” or activities; 6) “[a] statement of
individual appropriate accommodations that are necessary to
measure the academic achievement and functional performance
of the pupil on state and districtwide assessments”; 7)
“[t]he projected date for the beginning of the services
and modifications” to be offered under the IEP; and 8)
“[b]eginning not later than the first individualized
education program to be in effect when the pupil is 16 years
of age, or younger if determined appropriate by the
individualized education program team, and updated annually
thereafter . . .[a]ppropriate measurable postsecondary goals
based upon age-appropriate transition assessments related to
training, education, employment and where appropriate,
independent living skills.” Id.; see
also 34 C.F.R. § 300.320(a).
the IDEA, “[a]t the beginning of each school year, each
local educational agency, State educational agency, or other
State agency, as the case may be, shall have in effect, for
each child with a disability in the agency's
jurisdiction, an individualized education program . . .
.” 20 U.S.C. § 1414(d)(2)(A).
time allowed to complete an IEP depends on the student's
circumstances. Under the California Education Code:
An individualized education program required as a result of
an assessment of a pupil shall be developed within a total
time not to exceed 60 days, not counting days between the
pupil's regular school sessions, terms, or days of school
vacation in excess of five schooldays, from the date of
receipt of the parent's written consent for assessment,
unless the parent agrees, in writing, to an extension.
However, an individualized education program required as a
result of an assessment of a pupil shall be developed within
30 days after the commencement of the subsequent regular
school year as determined by each local educational
agency's school calendar for each pupil for whom a
referral has been made 30 days or less prior to the end of
the regular school year. In the case of pupil school
vacations, the 60-day time shall recommence on the date that
pupil schooldays reconvene. A meeting to develop an initial