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J.S. v. Clovis Unified School District

United States District Court, E.D. California

July 24, 2017

J.S., a minor, by and with her parents, ALBERTO SOLORIO and ALICIA SOLORIO, Plaintiffs,




         This appeal concerns an Administrative Due Process Hearing under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. Student J.S. ("Student") brought this action by and with her parents, Alberto Solorio and Alicia Solorio, seeking to reverse a decision of the California Office of Administrative Hearings ("OAH"). The decision found that Defendant Clovis Unified School District's ("the District") proposed individualized education program ("IEP"), as amended on April 18, 2016, offered Student a Free and Appropriate Public Education ("FAPE") in the least restrictive environment ("LRE") pursuant to the IDEA. (See Administrative Record ("AR") 616-48). Student seeks reversal of the OAH decision, as well as damages and attorney's fees and costs. (Doc. 1.)


         In March 2016, Student was a 14-year old girl attending seventh grade at Kastner Middle School within the Clovis Unified School District. Student qualifies for special education under the category of intellectual disability due to Down syndrome, and Student has been included in the general education program since Kindergarten, with resource specialist program ("RSP") support. Her educational program for seventh grade consisted of one elective, lunches, breaks, and physical education in general education, history and science in general education, and math and language arts in an RSP classroom. She has always had a one-to-one instructional aide.

         A. IEP Team Meetings

         On March 16, 2016, Student's IEP team met to develop Student's annual IEP for eighth grade. (AR 249-324.) The IEP team began by reviewing Student's progress on previous goals, noting she had met only 40 percent of her goals (6 out of 15). (AR 249-63.) Other than Student's mother ("Mother"), all members of the IEP team were concerned that Student was not making educational progress in the general education setting, observing Student was beginning to withdraw during her academic general education and RSP classes. (AR 290-94; 687:5-688:23; 1092:15-1093:4; 1179:25-1182:6.)

         Ms. Worden, Student's RSP instructor, explained Student put her head down in class when peers asked her questions, and Student would become frustrated and withdraw when she was questioned during instruction. (AR 291; 919:1-920:1.) The IEP team also considered a letter written by Ms. McLean, Student's science teacher, who observed Student had withdrawn in her science class, and her social skills had regressed. (AR 291; 581; 1177:18-1178:20.) Ms. Worden noted she had seen very "minimal growth over a two[-]year period and ha[d] seen some regression [in Student]." (AR 292; 1091:8-1093:19.) Student's grades were reviewed, which included "F" grades in both general education science and history. (AR 267.) Student received modifications of the academic requirements in both these general education classes to a kindergarten and first-grade level to meet her individual needs, but she was still unable to achieve a passing grade. (AR 285, 290-92, 915:24-916:5.)

         The IEP team also discussed eight new proposed goals for Student. (AR 274-82, 293-94, 1101:1-1119:15.) After discussing surrounding goals, inclusion, accommodations, modifications and supports for Student, and placement options, the District made its offer of a FAPE wherein Student would spend 42 percent of her time in a Special Day Class ("SDC") for academic activities with other disabled students, and 58 percent of her time in a regular classroom for extracurricular and non-academic activities. (AR 285; 293; 1111:16-1112:5.) Mother stated her concern that Student would not have movement from class to class in the SDC, and indicated she thought Student would do well in her general education classes if she were given additional supports. (AR 293.) Mother stated she would discuss the 42-percent SDC placement offer with her husband. Mother was asked whether she would consent to any portion of the IEP - i.e., the proposed goals - but Mother refused, indicating her fear that if she agreed to the goals, it would imply that the only place those goals could be worked on was in the SDC placement. (AR 294.)

         The IEP meeting was reconvened on April 18, 2016, to address Mother's concerns and to discuss the proposed IEP and offer of placement. (AR 295-324; 1133:1-1138:23.) At the April meeting, the IEP team discussed Student's lack of academic and non-academic progress in the general education setting, followed by comporting revisions to and additional new goals in Student's annual IEP. After the revisions, the offer of FAPE for the 2016-17 school year remained the same: Student would be placed in an SDC for her academic subjects (constituting 42 percent of her time), and in the general education setting for two elective classes and physical education (constituting 58 percent of her time). (AR 319.) Student's parents did not agree with this offer.

         B. The District's Request for A Due Process Hearing

         On May 27, 2016, the District requested a due process hearing before the OAH to determine whether the proposed IEP offered Student a FAPE and whether the District could implement it without Student's parents' consent. In defending and explaining its offer in its preconference hearing statement, the District provided the following argument, in relevant part:

Student's current placement is in the general education setting for 77% of the time and in the [RSP] direct instruction setting for 23% of the time. Due to Student's significant cognitive, adaptive, academic, and speech and language deficits, Student is unable to access the grade-level academic curriculum that is implemented in her general education and RSP classes.
In Student's academic classes, the District extensively modifies the grade-level curriculum as well as the expectations of Student's performance. Indeed, the curriculum must be modified to such an extent that it bears little or no resemblance to the work being done by the typically-developing students in Student's classes. Student requires ongoing and significant prompting and support by adult staff, including her one-on-one instructional assistant, on whom she is highly dependent. Effectively, Student is a member of the general education and RSP direct instruction classes in location only as she is working on a separate curriculum with her instructional assistant. This is not the least restrictive environment for Student, and she is receiving little educational benefit.

(AR 35-36.)

         C.Due Process Hearing Before the OAH Administrative Law Judge ("ALJ")

         A three-and-a-half day hearing was held before an ALJ beginning on July 12, 2016. (AR 651.) Donna Iturbe (District program specialist), Kristen Belknap (District learning director), Michele Shurtliff (Student's general education history teacher), Lisa Marie Bath (District psychologist who assessed Student in 5th grade), Gabrielle Worden (District resource specialist and teaches Student's RSP class), Regena McLean (Student's general education science teacher), Dava Parks (District special education teacher), David Weber (District lead psychologist), and Lisa Herring (District assistive technology) testified on behalf of the District. Hailee Santos (Student's friend and after-school tutor), Mother, and Patricia McVay (Student's special education expert) testified on behalf of Student.

         Ms. Iturbe observed Student in several of her RSP classes, and noted Student would withdraw or shut down and disengage when the tasks were too difficult for her; she did not respond to teachers and required encouragement and cuing to get back on track; and she was very dependent on her instructional aide, requiring prompting at every step of academic assignments. This type of withdrawal and disengagement was not observed in Student's non-academic classes. (AR 671-847.)

         Ms. Belknap observed Student primarily in her RSP language arts class, but also observed her in math class as well as at break and lunch times. Even in her RSP classes, Student did not actively participate in the lesson; she required prompting from her instructional aide to start her work and needed redirection back to the assignment when she was off task; and Student was reserved and quiet. Ms. Belknap testified Student's engagement was different in non-academic classes, where she interacted in a causal and fun manner, appearing happy and relaxed. (AR 847-904.)

         Ms. Shurtliff testified Student was unable to keep up with the general education history curriculum; she could not comprehend many of the vocabulary terms or text-related questions; she was unable to engage or participate with the class during instruction; she could not do any of the whole-class or group reading portions of instruction; and she was unable to start or continue her work independently. Ms. Shurtliff noted Student even struggled with her modified curriculum and would become frustrated and withdraw. Ms. Shurtliff testified the eighth grade reading criteria could not be modified to Student's instructional level. Although she had no specific training on inclusion for students with Down syndrome or with intellectual disabilities, she had support from the special education staff. (AR 904-29.)

         Ms. Bath, a school psychologist, testified she observed Student in the RSP setting in 2014 while Student was in the 5th grade. At that time, Student was unable to initiate work independently and required her instructional aide to prompt her to start and continue working through each step of an assignment. In her music class, however, Student required less prompting and engaged with the class and her peers. Her impression was Student was struggling "quite a bit" with her general education academic material. (AR 939-1028.)

         Ms. Worden taught Student language arts and math in the RSP setting, and observed Student in her science and history classes. In her RSP classroom, Student was unable to keep up with the modified curriculum, and Ms. Worden testified she was unable to modify her curriculum to Student's first-grade instructional level. Ms. Worden described Student as more social in her elective classes, but in her academic classes she did not initiate conversations, did not appear happy, and did not engage with peers or perform group work. In her history class, Ms. Worden observed Student would appear uneasy coming to class, and despite prompting from the teacher and instructional aide, she often appeared frustrated or did not know what to do. She would demonstrate her frustration by putting her head down or shrugging her shoulders. Even in her RSP class, Ms. Worden noted Student was growing increasingly frustrated as the curriculum progressed. (AR 1029-1159.)

         Ms. McLean is Student's general education science teacher. She testified she has experience with special needs students, including those with cognitive delays. She observed Student was unable to understand the class material; the majority of the time Student appeared overwhelmed and as though she did not want to be in the class. Student would place her head on her desk or look disengaged; she did not engage with the instruction; she was not independently motivated to initiate work; and she had very little comprehension of the text and materials, even though modified to her instructional level. Ms. McLean testified she saw Student withdrawing more and more as the year progressed; she was easily embarrassed and would withdraw from questioning; and she appeared overwhelmed with the materials. Ms. McLean explained that she was unable to modify the eighth grade curriculum to a level that Student would understand and be able to access. (AR 1161-95.)

         Dava Parks, the special education SDC teacher for the District, testified she generally has 10 to 12 students in the SDC class who function anywhere from a pre-kindergarten to a second- or third-grade level. The goals she teaches are based on state standards, and she exposes students to their grade-level standards whenever possible. Ms. Parks testified she paired Student with a peer mentor to assist her in elective classes during seventh grade, she observed Student 10 times per semester, and she completed Student's state assessment. In her view, Student was difficult to keep focused, and she was often observed to be unengaged with her head on the table. It was difficult for Student to stay on task during class. Ms. Parks testified she had reviewed Student's proposed IEP goals for eighth grade and found them appropriate and measurable. (AR 1209-79.)

         Dr. Weber, lead psychologist for the District, testified about his observation of Student during her general education history class. During that class, Student was able to find her seat and work with her instructional aide who prompted her to start her work. Student worked in a group, and another student attempted to interact with her, but she seemed to reciprocate very little. During instruction, Student was unable to keep pace with the class; for example, although the rest of the class was listening to instruction and directions given by the teacher, Student still did not have her name on the top of the assigned worksheet. When the class began working independently after the teacher had given the assignment directions, Student put her head on her desk and appeared uninterested in working on the assignment. Although the aide and the teacher attempted to engage her with the assignment, Student kept her head down on her desk. Dr. Weber's impression was Student did not understand what she was supposed to do with the assignment, despite encouragement and prompting. Upon review of Student's proposed IEP goals, Dr. Weber testified they seemed appropriate based on Student's current level of functioning. (AR 1472-1519.)

         Ms. Herring is the District's assistive technology coordinator who testified about the technology made available to Student to access the curriculum. An i-pad was available to Student which had several applications for visual aids, typing, spelling, and calendaring. There were also applications for math, writing, and for identifying coins. Bookshare was also available, which would assist in increasing textbook font and provided some audio of texts. Student's aide was trained to access and use the i-pad applications. Student had some difficulty learning the applications, but she was making some progress on repetitive tasks through the use of the i-pad. Student had supplementary aids and services including high- and low-tech assistance, such as masking, access to the internet and software applications, manipulatives for math, and pairing of verbal directions with visual cues. (AR 1358-88)

         Hailee Santos, a friend and Student's former after-school tutor, testified Student was making progress in her speech abilities as Student could form longer sentences, could relate stories with more detail, and had become more outspoken. Student talked to Ms. Santos about her friends, and it appeared she liked her teachers and all of her classes. Ms. Santos did not tutor Student during her seventh grade school year and had not observed her at school. (AR 1282-89.)

         Mother testified Student enjoyed school, and could navigate her schedule and find her classes. Student enjoyed her homework; she liked her classes and talked about a movie she had seen in her science class about DNA. Mother felt that even though it may appear Student was not learning, she was listening and understanding some of the academic material. Due to vision impairment, Student requires larger font and images. During homework, Student did not require constant prompting. Student's draft IEP in 2015 for seventh grade had proposed an SDC class, but Mother did not consent. Student was placed on a "stay put" schedule for seventh grade, and remained in general education for science and history. During the IEP meeting in March 2016, an SDC classroom was again suggested as the placement for Student for academic subjects. Based on Mother's observations, however, she thought Student still benefitted from an inclusive setting. Student was motivated in her general education classes and loved science. She felt Student was making progress on her goals, but certain modifications, such as enlarged print, were not in place all academic year, and that may have been detrimental to Student. Mother felt the IEP team never addressed inclusion as a placement option for ...

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