M.L. v. Federal Way School Dist.

• Decision Date: 02 September 2003
• Docket Number: No. 02-35547.,02-35547.
• Citation: 341 F.3d 1052
• Parties: M.L., a minor; C.D. and S.L., his parents, Petitioners-Appellants, v. FEDERAL WAY SCHOOL DISTRICT; Washington Superintendent of Public Instruction, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

341 F.3d 1052

M.L., a minor; C.D. and S.L., his parents, Petitioners-Appellants, v. FEDERAL WAY SCHOOL DISTRICT; Washington Superintendent of Public Instruction, Respondents-Appellees.

No. 02-35547.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 7, 2003 — Seattle, Washington.

Filed September 2, 2003.

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James E. Lobsenz, Carney Badley Spellman, P.S., Seattle, Washington, for the petitioners-appellants.

Christopher L. Hirst, Preston Gates & Ellis LLP, Seattle, Washington; James J. Dionne, Dionne & Rorick, Seattle, Washington, for the respondents-appellees.

Appeal from the United States District Court for the Western District of Washington; John C. Coughenour, Chief Judge, Presiding. D.C. No. CV-01-00899-JCC.

Before: Arthur L. ALARCÓN, Ronald M. GOULD, and Richard R. CLIFTON, Circuit Judges.

ALARCÓN, Senior Circuit Judge.

M.L. and C.D., his mother, and S.L., his father, appeal from the order granting the motion for summary judgment filed by Appellees, Federal Way School District and the Washington Superintendent of Public Instruction. We affirm because we conclude that Appellants have failed to demonstrate that M.L. was denied a free appropriate public education ("FAPE").

I

Unless otherwise indicated, the facts are undisputed. M.L. was born on November 13, 1994. He suffers from autism, mental retardation and macrocephaly.¹ As of February 2001, he was globally delayed across all developmental domains consistent with his cognitive level and had significant behavioral problems. M.L. was almost completely nonverbal, had virtually no communication skills, was not toilet-trained, and had a cognitive ability that placed him at the first percentile level on the Battelle Developmental Inventory.² M.L. had not learned to generalize many skills. Dr. Ilene Schwartz, one of the Federal Way School District's experts regarding educational practices for children with autism, indicated that M.L. might be able to perform tasks with a familiar service provider, but would be unable to demonstrate those skills when asked to do so in another environment. M.L. made gains in physical therapy between 1997 and 2000. The progress reports from Puget Sound Therapy Services indicate, however, that as of August 2000, M.L. had frequent temper tantrums and displayed aggressive behavior such as hitting and pinching, which interfered with his performance in therapy. M.L.'s occupational therapist recommended that M.L. would benefit from a more structured environment.

M.L. was enrolled in a preschool program in the Tukwila School District in September of 1997. He attended preschool four days per week for approximately two hours per day for three years. Except for a few months in his third year, M.L. was continuously assigned to Jodie Wicks's integrated preschool class through June of 2000.³ The class followed the same routine each day, using the same songs and activities. Each year the class also included several of the same students and the same instructional assistants.

M.L.'s skills improved over the course of his three years in Ms. Wicks's class. M.L. began to interact more frequently with other children and participated, to a limited extent, in classroom activities. M.L. was teased a few times while enrolled there. During the three years he was enrolled in Ms. Wicks's class, he was assigned a one-on-one instructional assistant who remained with him throughout the day. M.L. displayed increasingly aggressive behavior during that time. This conduct was documented by many of his service providers. His level of aggression escalated when he was frustrated or given more challenging tasks. He would cry and whine or bite and scratch his instructional assistant. He mouthed many objects and at least on one occasion bit another child. Lai Doo, M.L.'s in-home therapist, testified that as M.L.'s level of communication increased, his level of aggression decreased. However, Ms. Doo also stated that M.L.'s "level of aggression seem[ed] to be a lot more severe than the others that [she had] seen."

Because M.L. is disabled, the Tukwila School District was required by 20 U.S.C § 1414(d)(1)(A), to create an individualized education program ("IEP") each year that stated M.L.'s "present levels of educational performance," outlined the "special education and related services ... to be provided to [M.L.]," and set forth "measurable annual goals." The composition of the "IEP team," the group of people who are required to participate in the creation of the IEP, is dictated by 20 U.S.C. § 1414(d)(1)(B). On January 31, 2000, the IEP team for the Tukwila School District, which included Ms. Wicks, prepared an IEP for M.L.'s initial placement for the 2000-2001 academic year. Under the Tukwila School District IEP, M.L. was to be enrolled in September in an integrated kindergarten class for 130 minutes, four times per week and was to receive additional therapy and instructional services.

Around July 30, 2000, M.L. and his family moved to the Federal Way School District, prior to M.L.'s enrollment in kindergarten in the Tukwila School District. M.L. began kindergarten on September 5, 2000, at the Mark Twain Elementary School in the Federal Way School District. The Federal Way School District attempted to implement the Tukwila School District's IEP until it was due to expire on September 30, 2000. Accordingly, M.L. was placed in Sandy Ramsey's integrated kindergarten class. Ms. Ramsey is duly certified as a regular and special education teacher.

At C.D.'s suggestion, Ms. Ramsey controlled M.L.'s behavior in class by letting him listen to his favorite music on his headphones. The Federal Way School District hired a series of one-on-one instructional assistants to work with M.L. Each of them quit after working with him for one day.

During the majority of the five days M.L. was enrolled at the Mark Twain School, C.D. attended class with M.L. On September 5, 2000, C.D. witnessed two boys teasing M.L. She discussed this incident with Ms. Ramsey and Pat Warden, Ms. Ramsey's classroom assistant. Ms. Ramsey responded that she "would make a note and make it a priority to keep observing-keep an eye on these children and a better eye on [M.L.] to see if anything continued to happen so she could address any incidents that might happen." On September 6, 2000, C.D. observed more children teasing M.L. at recess. She reported this conduct to Ms. Ramsey and Ms. Warden. C.D. testified, however, that M.L. was "happy as a little lark" during recess.

On September 7, 2000, C.D. again observed children teasing M.L. at recess and during class time. She discussed this conduct with Ms. Ramsey. Ms. Ramsey told C.D. that she "had not witnessed any teasing of M.L. during class, but would continue to watch for it and intervene if necessary." Ms. Ramsey informed C.D. that "policies were in place regarding teasing and that she did not allow such behavior in her class."

C.D. witnessed additional teasing incidents on September 8 and September 11, 2000. She reported these events to Ms. Ramsey. Ms. Ramsey replied that "she would keep an eye on [M.L.] and would take care of it." Ms. Ramsey did not take any action regarding the teasing incidents. C.D. testified that there was no evidence that M.L. was actually affected by the teasing and that "because he had his headphones on most of the time he was being teased ... [she] didn't know if he even heard it."

The morning of September 12, 2000, C.D. called Diane Conn, the Vice-Principal of the Mark Twain School, to report a teasing incident that had allegedly occurred the previous day. Ms. Conn suggested that C.D. contact Ms. Ramsey. Ms. Conn then contacted Ms. Ramsey and advised her to talk to C.D.

On September 13, 2000, Ms. Ramsey telephoned C.D. to discuss her complaint that M.L. had been teased on September 11, 2000. Ms. Ramsey informed C.D. that the teasing that took place on September 11, 2000 was the only incident that she had observed. Ms. Ramsey testified that during that conversation, she requested that C.D. give her the first opportunity to take care of problems concerning M.L. before C.D. took the matter further. M.L. did not return to the Mark Twain School after September 11, 2000. C.D. did not speak with any Federal Way School District administrator before removing her child from the school.

On or about September 17, 2000, the Federal Way School District offered to place M.L. at the Wildwood Elementary School in a self-contained classroom⁴ taught by Teresa Thomas, a certified special education teacher with experience in teaching autistic children. C.D. refused to enroll M.L. in the Wildwood Elementary School because she believed that the self-contained class did not provide for sufficient participation with regular education students. She thought that "it could be potentially dangerous for [M.L.]" to interact with the other students in the self-contained class. C.D. did not visit Ms. Thomas's class at any time.

After M.L.'s Tukwila School District IEP expired on September 30, 2000, a multidisciplinary team ("MDT"), which included C.D., met on October 6, 2000, to determine whether M.L. qualified for special education services. The evaluation was based upon extensive records from M.L.'s care-providers, identified by C.D.; the discussions between Jan Rutledge, a Federal Way School District Psychologist, and both Ms. Wicks and the school psychologist at the Tukwila School District; the Tukwila School District IEP; an interview with C.D.; and a two-hour observation of M.L. by the MDT.

After evaluating M.L., the MDT drafted a Special Education Evaluation Report which contained recommendations for M.L.'s education. The MDT recommended that M.L. be placed in a special education program that offered a small class size, provided visual supports, and predictable and consistent schedules and routines. The MDT, including C.D. and M.L.,...