Ms. S. ex rel. G. v. Vashon Island School Dist.

• Decision Date: 31 July 2003
• Docket Number: No. 99-36243.,99-36243.
• Parties: MS. S., for herself and on behalf of her daughter G., Plaintiff-Appellant, v. VASHON ISLAND SCHOOL DISTRICT; Office of Superintendent of Public Instruction, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

337 F.3d 1115

MS. S., for herself and on behalf of her daughter G., Plaintiff-Appellant, v. VASHON ISLAND SCHOOL DISTRICT; Office of Superintendent of Public Instruction, Defendants-Appellees.

No. 99-36243.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 7, 2003.

Filed July 31, 2003.

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Juliann Brown, Vanessa Soriano Power, and Deirdre Runnette, Dorsey & Whitney, Seattle, Washington, for plaintiff-appellant Ms. S, for herself and on behalf of her daughter G.

Christopher L. Hirst, Preston, Gates & Ellis, Seattle, Washington, for defendant appellee Vashon Island School District.

Christine O. Gregoire, Attorney General, and David A. Stolier, Assistant Attorney General, Office of the Attorney General, Olympia, WA, for defendant-appellee Office of the Superintendent of Public Instruction.

Appeal from the United States District Court for the Western District of Washington; William L. Dwyer, District Judge, Presiding. D.C. No. CV-96-00965-WLD.

Before: REINHARDT, W. FLETCHER, and GOULD, Circuit Judges.

GOULD, Circuit Judge.

Ms. S, a mother committed to the education of her disabled daughter, G, brought suit against the Vashon Island School District ("VISD") alleging that the VISD had committed procedural and substantive violations of the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. §§ 1400 (et seq.). Ms. S alleges that the VISD violated the IDEA by proposing a temporary individualized educational placement ("IEP") for G that placed G in a special education classroom, segregated from the general student population. The VISD argues that the temporary placement was appropriate until the VISD had the opportunity to assess and evaluate more fully G's needs and abilities. The district court granted summary judgment to the VISD, holding that the VISD's proposed temporary IEP met the substantive requirements of the IDEA because it was the closest approximation to G's last educational placement, and that any deficiencies in VISD's procedural compliance with the IDEA were "minor and technical." We affirm, concluding that the VISD's efforts to serve G's educational interests complied with the substantive and procedural requirements of the IDEA and satisfied the VISD's obligation to provide a Free Appropriate Public Education ("FAPE") to G.

BACKGROUND

I. Seattle School District

A. 1992-1993 school year

G, who is currently 17, has Down's syndrome¹ and tested in the "mildly mentally retarded"² range on a standard IQ evaluation at the ages of six and ten. During the 1992-93 school year (kindergarten), Seattle educators, on G's behalf, developed an IEP. This is a special education plan that must be customized for each special education student and that is required by the IDEA. G's IEP included a half day in a regular kindergarten classroom and a half day in a special education classroom, and was implemented at the Bagley Elementary School in Seattle.³

Although G was "successful" in the special education classroom, she experienced behavior problems in the general education classroom. G was bossy and demanded frequent attention of both the teacher and her peers, with occasional outbursts. Seattle's Director of Special Education, Frosyne Mensendick, thought that this experience was likely to be indicative of G's future performance, and stated that she could not imagine placing G in a general education classroom. Eventually, at Ms. S's request, Seattle returned G on April 29, 1993 to a full-day program in the self-contained special education class.

B. 1993-94, 1994-95 school years

On May 18, 1993, in anticipation of the 1993-94 school year (1st grade), Ms. S requested that G be placed in a general education classroom, but Seattle felt that such a placement was inappropriate. In June, G's IEP team agreed to reassign G to Alternative School # 1, which featured an unique and experimental multi-age classroom combining special education and general education students, staffed by a special education teacher and a paraprofessional aide. Ms. S did not sign this IEP, but permitted G to be enrolled in the program. This IEP included a special education curriculum with general education students in G's classroom. Although the form appears to prescribe 1650 minutes per week (5.5 hours per day) of special education and 1650 minutes per week of general education, it then shows a "total" of 1650 minutes per week (5.5 hours per day) for the program described above. Because a full school week in the Seattle School District is 1650 minutes per week, and G attended school for only 1650 minutes per week, we assume that the part of the form that reflects the "total" time is correct.

For the 1993-94 school year, G spent most of the day at Alternative School # 1 with twenty-three other students ranging in age from six to ten years old. Of the twenty-three students, five received special education services, and the remaining eighteen received individually tailored general education.⁴ Although the majority of G's peers in this classroom were general education students, she received individually-designed instruction that was largely prepared by a certified special education teacher. G did not require a dedicated assistant in this classroom. Mensendick did not consider this placement to be a regular education setting.

Although her teacher noted that G had continuing difficulties with appropriate personal space, the placement at Alternative School # 1 was described as generally successful for G. Her teacher indicated that with the proper support, G could be successful in a setting with normally developing peers.

Ms. S and Seattle agreed that G would return to the classroom at Alternative School # 1 for the 1994-95 school year. G, however, was not re-enrolled there. G's regularly scheduled three-year assessment was due in February 1995, but was not conducted at that time. G was released from the Seattle School District on August 22, 1995.

II. Vashon Island School District

In July 1995, with plans to move to Vashon Island, Ms. S contacted the Vashon Island School District ("VISD") to inquire about enrolling G in a general third-grade classroom at Chautauqua Elementary School, the VISD's only elementary school.

This inquiry began a long series of disputed conversations and letters regarding G's placement in the VISD. The VISD, which was focused on enrolling and assessing G, wanted to place G temporarily in a self-contained special education environment until it could be determined from the assessment whether the temporary placement was appropriate. In contrast, Ms. S was focused on having G placed first in a general education environment, or at the least, having G assessed before she was temporarily placed. Because of "stay-put" provisions that Ms. S understood to mandate that a child remain in her last placement during any dispute, Ms. S did not want to have G in self-contained special education while disputes regarding G's education were being resolved.

On September 18, 1995, Lynda Walls, the VISD's Director of Student Services, formally welcomed Ms. S to the district by mailing a letter to her Vashon address. Walls enclosed a form asking for Ms. S's consent to place G temporarily in a self contained special education classroom, for less than thirty days, to evaluate an appropriate permanent placement. Ms. S did not sign the form. On the same day, Ms. S wrote to Walls that the VISD was refusing to assess G until she was placed in the self-contained special education classroom. Ms. S protested that this placement was inconsistent with G's last IEP, and demanded an independent assessment before any placement.

On September 19, Walls sent two letters to Ms. S. The first clarified in writing that the VISD rejected Ms. S's September 1 request for an interdistrict transfer,⁵ on the basis that the VISD could not provide the level of service Ms. S was seeking. The second notified Ms. S that even if G had properly been enrolled (presumably as a resident) on September 5, she had since been withdrawn for lack of attendance, and that Ms. S could re enroll G if she planned to send her to Chautauqua Elementary School.⁶ The second letter also advised that the psychologist would again attempt to schedule an assessment.

Throughout late September, October, and November, there were several unsuccessful attempts to schedule meetings to evaluate G and to discuss an IEP with Ms. S. The meetings never occurred, according to Ms. S, "[d]ue to VISD's failure to provide proper notice, VISD's refusal to include a general education teacher in any proposed IEP meeting, and G's illness and/or hearing aid difficulties." Also, no assessment occurred, due in part to the lack of the necessary consent form.

On October 20, and again on October 27 and November 3, Walls informed Ms. S that, until G could be assessed for a permanent placement, the VISD would use her last IEP as a guide in developing a temporary IEP. Walls believed that, given the last IEP available and the available options at Chautauqua Elementary School, it was appropriate to place G temporarily in a self-contained special education classroom, with some time in a general education classroom.⁷ On October 31, Ms. S again protested the proposed placement, claiming that the district had not explained why it could not accommodate G in an inclusive classroom with general education students and supplemental aids and services, which she claimed reflected G's last IEP. The VISD special education teacher later testified that she would not have had enough information, using only G's 1993-94 IEP and her last assessment, to tailor the VISD's general education third-grade curriculum to suit G's needs in 1995.

By October 31, VISD had drafted a proposed interim IEP reflecting four hours per day (1200 minutes per week) of special education and at least one hour per day (300 minutes per week) of general education; this amounted...