Pasatiempo by Pasatiempo v. Aizawa

• Citation: 103 F.3d 796
• Decision Date: 19 December 1996
• Docket Number: No. 94-17092,94-17092
• Parties: 115 Ed. Law Rep. 314, 19 A.D.D. 826, 96 Cal. Daily Op. Serv. 9216, 96 Daily Journal D.A.R. 15,203 Ramsey PASATIEMPO, a minor, by his mother and next friend, Wanda PASATIEMPO, on behalf of himself and all others similarly situated; Peter Ferreira, a minor, by his mother and next friend, Mary Ferreira, on behalf of himself and all others similarly situated; Tina Williams, a minor, by her mother and next friend, Jasmine Williams, on behalf of herself and all others similarly situated, Plaintiffs-Appellants, v. Herbert AIZAWA, in his official capacity as Superintendent of the Department of Education of the State of Hawaii; Ernesta Masagatami, individually and in her official capacity as superintendent of the Honolulu district of the Department of Education of the State of Hawaii; State of Hawaii, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 796

103 F.3d 796

115 Ed. Law Rep. 314, 19 A.D.D. 826,

96 Cal. Daily Op. Serv. 9216,

96 Daily Journal D.A.R. 15,203

Ramsey PASATIEMPO, a minor, by his mother and next friend,

Wanda PASATIEMPO, on behalf of himself and all others

similarly situated; Peter Ferreira, a minor, by his mother

and next friend, Mary Ferreira, on behalf of himself and all

others similarly situated; Tina Williams, a minor, by her mother and next friend, Jasmine Williams, on behalf of herself and all others similarly situated, Plaintiffs-Appellants, v. Herbert AIZAWA, in his official capacity as Superintendent

of the Department of Education of the State of Hawaii;

Ernesta Masagatami, individually and in her official

capacity as superintendent of the Honolulu district of the

Department of Education of the State of Hawaii; State of

Hawaii, Defendants-Appellees.

No. 94-17092.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted May 9, 1996.

Decided Dec. 19, 1996.

Shelby Anne Floyd, Mary Martin, Alston Hunt Floyd & Ing, Honolulu, HI, for plaintiffs-appellants.

Margery S. Bronster, Russell A. Suzuki, Steven K. Chang, Deputy Attorneys General, Honolulu, HI, for defendants-appellees.

Appeal from the United States District Court for the District of Hawaii, David A. Ezra, District Judge, Presiding. D.C. No. CV 93-00343-DAE.

Before: FLETCHER, D.W. NELSON, and CANBY, Jr., Circuit Judges.

D.W. NELSON, Circuit Judge.

Appellants Ramsey Pasatiempo, Peter Ferreira, and Tina Williams, on behalf of themselves and a class of similarly situated individuals ("Parents and Students"), appeal the district court's grant of summary judgment in favor of Appellee Department of Education of the State of Hawaii ("DOE"). Parents and Students maintain that in administering individual evaluations of students without comporting with the procedural requirements of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1485 ("IDEA") and the Rehabilitation Act, 29 U.S.C. § 794 ("Section 504"), the DOE violated federal law. ¹ We have jurisdiction over this appeal, 28 U.S.C. § 1291, and we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

I. Statutory and Regulatory Background

The IDEA requires that all students with disabilities be "identified, located, and evaluated," 20 U.S.C. § 1412(2)(C), and that their parents be notified when a school district intends to evaluate them for special education, 20 U.S.C. § 1415(b)(1)(C). In order to comply with these statutory mandates, the DOE adopted Haw.Admin.R.Chap. 36 ("Chapter 36"), the goal of which is to guarantee procedural protections to students and their parents during the evaluation and placement processes:

The purpose of this chapter is to provide procedures that protect the due process rights of children who are handicapped, or who are suspected of being handicapped, and their parents in matters relating to identification, evaluation, program, placement, or the provision of a free appropriate Haw.Admin.R. § 8-36-1 (Jan. 6, 1986).

public education and to inform the public of these procedures and rights.

In a similar vein, Section 504 of the Rehabilitation Act requires the DOE to conduct preplacement evaluations of students who, because of a disability, need or are believed to need special education or related services before those students are placed in a regular or special education program. 34 C.F.R. § 104.35(a). These are referred to as Chapter 36 assessments. Regulations promulgated under § 504 also provide parents with certain procedural safeguards:

A recipient that operates a public elementary or secondary education program shall establish and implement, with respect to actions regarding the identification, evaluation, or educational placement of persons who, because of handicap, need or are believed to need special instruction or related services, a system of procedural safeguards that includes notice, an opportunity for the parents or guardian of the person to examine relevant records, an impartial hearing with opportunity for participation by the person's parents or guardian and representation by counsel, and a review procedure.

34 C.F.R. § 104.36. The regulations further provide that compliance with the IDEA's procedures satisfies the requirements of § 504. Id.

The evaluations at issue in this case, however, are conducted without the benefit of these procedural safeguards, and are described by the DOE as "non-Chapter 36 assessments." The DOE explains that these assessments are "conducted for students who are not suspected of having a handicap, but who may be exhibiting achievement delays or adjustment difficulties, which may require alternative teaching strategies." The scope of these evaluations may be quite broad. A DOE specialist testified that non-Chapter 36 tests "include, but are not limited to," the following:

spelling, vocabulary, dictionary skills, research skills, reading, diction, language arts, comprehension, decoding, word analysis, writing, punctuation, expression, grammar, syntax, arithmetic calculations, mathematic calculations, geometric calculations, algebraic calculations, word problems, grapho-motor skills, penmanship, determination of social resources available in the community, crisis intervention, parenting skills (divorce), counseling services, hearing tests, vision tests, intellectual, and psychological testing.

The DOE contrasts these assessments with Chapter 36 evaluations, which "include, at the minimum, 10-14 tests in the battery provided in the four areas of intellectual, speech/language, academic, and social development." See 34 C.F.R. §§ 300.532(d) & (f); Haw.Admin.R. § 8-36-11.

If either a parent or a teacher requests an evaluation, he or she completes a "Request for Evaluation." Some of the request forms are designated as "Non-Department of Education Evaluation Request[s]," while the others have no such limiting provision, and presumably refer to comprehensive assessments. The forms are otherwise identical; they neither distinguish between the two types of evaluations, nor provide any mechanism whereby individuals may select between the two. The request is then reviewed by a school screening committee which decides whether an evaluation will be administered, and if so, what kind. If the committee decides that an assessment of a student is warranted, it completes a "Referral for Special Services" on which it describes its reasons for recommending the evaluation, and transmits the form to the DOE. On the form, the requester indicates the areas in which the student is experiencing difficulties. A substantial impairment of the student's abilities in a number of these areas would likely reflect a disability. ² The requester then chooses between making a Chapter 36 or a non-Chapter 36 referral, and transmits the form to the DOE.

The DOE appears in some cases to make little distinction between the two types of evaluation requests. With respect to at least one of the class members for whom a non-Chapter 36 evaluation had been requested, the DOE responded to the referral by issuing a letter stating that an initial comprehensive evaluation would not be conducted. ³ Similarly, in cases where parents have completed "Non-Department of Education Evaluation Request[s]," the DOE has in some cases provided comprehensive evaluations.

When the DOE decides to conduct a non-Chapter 36 evaluation, it sends to parents a "Notification of a Special Evaluation." That form includes a checklist of reasons for the evaluation which include hearing, speech/language, and academic and social work. The form further provides that "[t]hese services may include interviews, observations and/or when appropriate, tests or scales given by qualified personnel." When parental consent is requested, the consent form asks only that the parent "give consent to the Department of Education to provide intellectual and academic assessments to facilitate educational programming and to assist in the guidance of [the] child." It does not, however, state that the evaluation to be conducted is not a comprehensive special education test.

II. The Class Representatives

A. Tina Williams

When Tina Williams was in the second grade, her mother requested an evaluation. Tina was referred for a non-Chapter 36 assessment, but Parents and Students contend that her mother was not informed of the fact that Tina would not receive a comprehensive evaluation. After Tina was given the non-Chapter 36 test, her mother was informed that Tina did not qualify for special education. Parents and Students maintain that she was not given notice of her right to challenge the test results.

Subsequently, Tina's mother arranged for an independent psychological and educational evaluation. The results of the evaluation indicated that Tina had a number of problems, among them difficulties with hearing and comprehension. Tina's mother then requested another evaluation. The form on which she made her request was designated as a "Non-Department of Education Evaluation Request." The DOE, however, responded to the request by performing a comprehensive evaluation, and found Tina to have a Specific Learning Disability ("SLD") and to be eligible for special education.

B. Ramsey Pasatiempo

In May 1990, Ramsey Pasatiempo, a first grade regular student, was given a non-Chapter 36 assessment in response to a school referral. The reasons given for the referral included Ramsey's hyperactivity, inattentiveness, and difficulty understanding instructions. The school completed a "Referral for Special Services" form, but there is no indication that Ramsey's parents consented to the administration of the non-Chapter 36 test. After administering the evaluation, the DOE concluded that because Ramsey "was performing at the first grade level ... no further testing was warranted."

Later, on November 30, 1992, Ramsey's parents requested an evaluation; like the Williams' form, it too was designated as a "Non-Department of Education Evaluation...