267 F.3d 877 (9th Cir. 2001), 99-17157, Amanda J. v. Clark County School Dist.

Docket Nº:99-17157
Citation:267 F.3d 877
Party Name:AMANDA J., A Minor, By and Through Her Guardian Ad Litem, ANNETTE J., Plaintiff-Appellant, v. CLARK COUNTY SCHOOL DISTRICT, and NEVADA STATE DEPARTMENT OF EDUCATION, Defendants-Appellees.
Case Date:August 13, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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267 F.3d 877 (9th Cir. 2001)

AMANDA J., A Minor, By and Through Her Guardian Ad Litem, ANNETTE J., Plaintiff-Appellant,

v.

CLARK COUNTY SCHOOL DISTRICT, and NEVADA STATE DEPARTMENT OF EDUCATION, Defendants-Appellees.

No. 99-17157

United States Court of Appeals, Ninth Circuit

August 13, 2001

Argued and Submitted March 13, 2001

Amended September 25, 2001

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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COUNSEL: Geralyn M. Clancy, (argued) Varma & Clancy, Sacramento, California, for the plaintiff-appellant.

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Donna Mendoza Mitchell, (argued) Office of the General Counsel Clark County School District, Las Vegas, Nevada, for defendant-appellee Clark County School District.

Melanie Meehan-Crossley (on brief), Deputy Attorney General of the State of Nevada, Carson City, Nevada, for the defendant-appellee Nevada State Department of Education.

Appeal from the United States District Court for the District of Nevada, Howard D. McKibben, District Judge, Presiding, D.C. No. CV 98-01076-HDM

Before: Michael Daly Hawkins, M. Margaret McKeown, and Kim McLane Wardlaw, Circuit Judges.

ORDER

The Opinion filed August 13, 2001, slip op. 10681, and appearing at 2001 WL 902125, is amended as follows:

Please see attached Amended Opinion .

With these amendments, the panel has voted unanimously to deny the petition for rehearing and to reject the suggestion for rehearing en banc.

The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED.

OPINION

WARDLAW, Circuit Judge:

Amanda J., a minor, by and through her mother and Guardian Ad Litem, Annette J., appeals from the district court's decision to affirm the State Review Officer's ("SRO") conclusion that she received a free appropriate public education ("FAPE") under the Individuals with Disabilities Education Act, 28 U.S.C. §§ 1400-1487 ("IDEA" or"the Act"). As part of Nevada's two-tiered administrative review process, the SRO reversed the State Hearing Officer's ("HO") determination that the Clark County School District (the"District") denied Amanda a FAPE. The HO's determination would have provided Amanda reimbursement for the cost of the 1996 assessments indicating autism and the cost of an in-home program funded by her parents from April 1, 1996 July 1, 1996, as well as compensation for the inappropriate language services rendered during her time in the District.

We must initially decide a question of first impression for our court: what level of deference do we give to the state agencies involved in a two-tiered review process when each reaches a different result predicated on a credibility determination? In other words, to which administrative body do we accord the "due weight" standard of review for IDEA cases, established by Board of Education v. Rowley, 458 U.S. 176, 206 (1982)? We then turn to a question of more significance to the growing number of parents of autistic children for whom early detection and early parental involvement in education is critical to their ability to overcome the disorder: whether the District's failure to give Amanda's parents copies of the evaluations indicating the possibility of autism and the need for further psychiatric evaluations when the District learned of the possible diagnosis violated the procedural requirements of the IDEA. We hold that it did. By preventing Amanda's parents from fully and effectively participating in the creation of an individualized education program ("IEP") for Amanda, the District made it impossible to design an IEP that addressed Amanda's unique needs as an autistic child, thereby

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denying Amanda a FAPE. We further hold that the district court erred by according greater deference to the credibility determinations of the State Review Officer than to those of the Hearing Officer in applying the due weight standard. We have jurisdiction pursuant to 28 U.S.C.§ 1291, and we reverse.

I. Statutory Background

The IDEA provides states with federal funds to help educate children with disabilities if they provide every qualified child with a FAPE that meets the federal statutory requirements.1 Congress enacted the IDEA "to assure that all children with disabilities have available to them . . . a free appropriate public education which emphasizes special education and related services designed to meet their unique needs . . . . " 20 U.S.C. § 1400(c) (1994).

In addition to establishing substantive requirements, the IDEA also includes procedural safeguards which, if violated, may prevent a child from receiving a FAPE. Among the most important procedural safeguards are those that protect the parents' right to be involved in the development of their child's educational plan. Parents not only represent the best interests of their child in the IEP development process, they also provide information about the child critical to developing a comprehensive IEP and which only they are in a position to know. To guarantee parents the ability to make informed decisions about their child's education, the IDEA grants them the right to "examine all relevant records" relating to their child's "identification, evaluation, and educational placement," as well as "to obtain an independent educational evaluation" of their child if they disagree with what the school district or state agency has found. 20 U.S.C. § 1415(b)(1)(A). "[P]arents have the right to "present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of [a FAPE] to such child." 20 U.S.C. § 1415(b)(1)(E).2 After making their complaint, the parents are entitled to "an impartial due process hearing . . . conducted by the State educational agency or by the local educational agency or an intermediate educational unit, as determined by State law or by the State educational agency," 20 U.S.C. § 1415(b)(2), and if either party is dissatisfied with the state educational agency's review, they may bring a civil action in state or federal court, 20 U.S.C. § 1415(e)(2).

II. Autism

According to two studies conducted in the mid-1980s, 3.3 of every 10,000 children suffer from autism.3 Autism is a developmental disorder of neurobiological origin that "generally has lifelong effects on how children learn to be social beings, to take care of themselves, and to participate in the community." National Research Council, Educating Children With Autism 9 (Catherine Lord & James P. McGee,

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eds., National Academy Press 2001).4 The disorder is present from birth, or very early in development, and affects the child's ability to communicate ideas and feelings, to use her imagination, and to establish relationships with others. Id. No single behavior is characteristic of autism, and no single known cause is responsible for its onset. Id. Perhaps most distressingly, currently there is no cure. Id.

Although autism manifests itself in different ways, its symptoms in children are often measurable by eighteen months of age. Id. at 20. The main characteristics that differentiate autism from other developmental disorders include "behavioral deficits in eye contact, orienting to one's name, joint attention behaviors (e.g., pointing, showing), pretend play, imitation, nonverbal communication, and language development." Id. According to the National Academy of Sciences, "[w]ith adequate time and training, the diagnosis of autism can be made reliably in two-year-olds by professionals experienced in the diagnostic assessment of young children" with autistic disorders. Id. at 3. Early diagnosis is crucial because education (of children as well as of parents and teachers) is the primary form of treatment, and the earlier it starts, the better. Id. at 9. Education covers a wide range "of skills or knowledge--including not only academic learning, but also socialization, adaptive skills, language and communication, and reduction of behavior problems--to assist a child to develop independence and personal responsibility. " Id.

Without early identification and diagnosis, children suffering from autism will not be equipped with the skills necessary to benefit from educational services. Id. at 170. A report by the National Research Council analyzed ten educational intervention models for children with autistic disorders. All ten programs emphasized "the importance of starting intervention when children are at the earliest possible ages. " Id. at 120. These studies showed that intensive early intervention "makes a clinically significant difference for many children." Id. at 137. All of the models presented "positive and remarkably similar findings, which included better-than-expected gains in IQ scores, language, autistic symptoms, future school placements, and several measures of social behavior." Id. Further, "at least two retrospective studies have found less restrictive placement outcomes for children who began intervention at 13668.earlier rather than later ages." Id. at 120. Thus, the available research strongly suggests that intensive early intervention can make a critical difference to children with autistic disorders. Id. at 132.

III. Amanda J.

Amanda J. was born in 1991. She and her family lived in Las Vegas, Nevada, in the Clark County School District, until they moved to California in October 1995. On January 18, 1994, when Amanda was two years old, she was evaluated by psychologist at the Special Children's Clinic, who found her to be "moderately low" in communication and daily living skills and "adequate" in socialization and motor skills. The psychologist recommended that Amanda be placed in the District's early childhood program prior to her third birthday to determine her...

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