502 F.3d 811 (9th Cir. 2007), 05-35181, Van Duyn ex rel. Van Duyn v. Baker School Dist. 5J

Docket Nº:05-35181.
Citation:502 F.3d 811
Party Name:James N. VAN DUYN, for his son, Christopher J. VAN DUYN, a minor & incapacitated person, Plaintiff-Appellant, v. BAKER SCHOOL DISTRICT 5J, Defendant-Appellee.
Case Date:April 03, 2007
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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502 F.3d 811 (9th Cir. 2007)

James N. VAN DUYN, for his son, Christopher J. VAN DUYN, a minor & incapacitated person, Plaintiff-Appellant,

v.

BAKER SCHOOL DISTRICT 5J, Defendant-Appellee.

No. 05-35181.

United States Court of Appeals, Ninth Circuit.

April 3, 2007

Argued and Submitted Nov. 14, 2006.

Amended Sept. 6, 2007.

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Pamela C. Van Duyn (argued), Baker City, OR, and Damien R. Yervasi, Baker City, OR, for the plaintiff-appellant.

Richard Cohn-Lee (argued) and Nancy J. Hungerford, The Hungerford Law Firm, Oregon City, OR, for the defendant-appellee.

Lewis Bossing, The Legal Aid Society of San Francisco, San Francisco, CA, for the amici curiae The Legal Aid Society of San Francisco--Employment Law Center, the Learning Rights Law Center, the Oregon Advocacy Center and Protection & Advocacy, Inc.

Appeal from the United States District Court for the District of Oregon; Michael W. Mosman, District Judge, Presiding, D.C. No. CV-02-01060-MO

Before: WARREN J. FERGUSON, DIARMUID F. O'SCANNLAIN and RAYMOND C. FISHER, Circuit Judges.

OPINION

FISHER, Circuit Judge:

The opinion filed at 481 F.3d 770 (9th Cir. 2007), is amended in full as follows:

This case arises from the difficult transition of Christopher J. Van Duyn ("Van Duyn"), a severely autistic child, from elementary to middle school. Van Duyn alleges that Baker School District 5J ("District") failed to implement key portions of his individualized educational program ("IEP") during the 2001-02 school year, his first year at Baker Middle School, thereby depriving him of the free appropriate public education guaranteed by the

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federal Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. 1 An administrative law judge ("ALJ") ruled that the District failed to provide Van Duyn sufficient math instruction, but otherwise found that the District had adequately implemented the IEP. The district court affirmed the ALJ's decision in all respects and declined to award any attorney's fees to Van Duyn.

Van Duyn brings to us a detailed list of complaints about the District's variances from his IEP, arguing that the ALJ and district court were much too forgiving of the District's failures to provide him the special instructional and support services agreed to in the IEP. Accordingly, we must decide how much leeway a school district has in implementing an IEP as it translates the plan's provisions into action at school and in the classroom. We hold that when a school district does not perform exactly as called for by the IEP, the district does not violate the IDEA unless it is shown to have materially failed to implement the child's IEP. A material failure occurs when there is more than a minor discrepancy between the services provided to a disabled child and those required by the IEP.

Applying this standard to the various implementation failures Van Duyn alleges, we conclude that none of them was material (with the exception of the math instruction shortfall, which was later remedied in response to the ALJ's order), and that the District therefore did not violate the IDEA. Because Van Duyn did partially prevail, however, we hold that Van Duyn is to that extent entitled to reasonable attorney's fees for the relevant work done at the administrative hearing level--though not for Van Duyn's mother, who has acted as one of his attorneys in these proceedings. Accordingly, we affirm in part and reverse in part the district court's judgment and remand for further proceedings consistent with this opinion.

I. Factual and Procedural Background

A. Factual History

Van Duyn is a severely autistic boy who was 13 years old during the 2001-02 school year. During the three years prior to 2001-02, Van Duyn was a student at South Baker Elementary School, where he received extensive special education services. On February 22, 2001, a team comprised of teachers, district representatives and Van Duyn's mother finalized a comprehensive IEP for the 2001-02 school year, during which Van Duyn would transition to Baker Middle School.

Van Duyn's 2001-02 IEP called for him to work on "language arts--reading and written work" for 6-7 hours per week, "math computation/math computer drills" for 8-10 hours per week and "adaptive P.E.--gymnastics and swimming" for 3-4 hours per week. At the middle school, his schedule consisted of alternating "red" and "white" days, with gym, language arts/reading, math and study skills on red days, and social studies/language arts, computers/vocational, language arts and reading on white days. Classes each lasted for about 80 minutes, and he worked on math skills during his designated red day math classes as well as during his advisory time and study skills and computers/vocational classes. Van Duyn attended gym class, which included a two-week gymnastics segment, on red days, and had swimming lessons twice per week.

Van Duyn's IEP also included a behavior management plan that was to be implemented full-time. Like the elementary school that he had previously attended, the

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middle school employed a daily behavior card, a visual schedule, social stories and a quiet room. However, his behavior was not accurately recorded on the card, he did not set up his daily schedule before starting each school day, social stories were not properly used and he was not ordered to go to the quiet room after all incidents of misbehavior.

The IEP further called for all material to be presented at Van Duyn's level and for him to be placed in a "self-contained" special education room. During class, he typically received one-on-one instruction from his personal aide, Linda Baxter, as well as some personal instruction from his two main teachers, Sue Irby and Kathleen Walker. It is unclear whether he generally proceeded at his own pace or instead received instruction about whatever subject the class was studying that day. His classes varied in size from 7 to 15 students and were composed entirely of special education students.

Other provisions in the IEP required the regional autism specialist to visit the middle school twice per week, "augmentative communication" services to be provided for two hours per month and Van Duyn's aide, Ms. Baxter, to receive state autism training. The regional autism consultant visited the middle school a dozen times over the first three months of the 2001-02 school year, and other autism consultants also came by with some regularity. Augmentative communication services were provided to Van Duyn in the form of visual aids, social stories, creative computer programs and other learning tools, though not by regional staff. His aide, Ms. Baxter, did not receive state-level training in educating autistic children, but she did attend local autism classes and meet with individuals who had worked with him in the past.

Finally, under the IEP, Van Duyn's progress was to be measured by quarterly report cards, and approximately 70 short-term objectives corresponding to a series of annual goals were to be pursued. The middle school issued quarterly report cards to Van Duyn containing percentage scores in a range of categories. Some of these categories corresponded to the IEP goals while others did not, and on the whole the middle school report cards did not track the IEP as well as the elementary school report cards did. Van Duyn also worked toward many but not all of the short-term objectives set out in the IEP. For example, he did not participate in any telephone activities or write a daily note home until December 2001.

There is evidence that Van Duyn's reading skills deteriorated during the 2001-02 school year, though it is unclear whether the regression amounted to three years or less than one. However, the school's therapist and psychologist both testified that his behavior improved in 2001-02 and that he was more engaged with his surroundings as the year progressed. Ms. Walker also testified that Van Duyn's math skills showed progress in 2001-02. Finally, his report cards indicated improvement in the vast majority of categories from October 2001 to June 2002.

B. Procedural History

On September 25, 2001, a few weeks after the 2001-02 school year had begun, Van Duyn's parents filed a request for a due process hearing pursuant to 20 U.S.C. § 1415(f). They alleged that the District had completely failed to provide certain services described in the IEP and materially failed to implement other IEP provisions. According to his parents, these failures were depriving Van Duyn of a free appropriate public education. The ALJ issued a detailed decision on April 8, 2002. She found that the District had failed to implement the IEP with regard to Van

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Duyn's math goals because he was not being given the requisite 8-10 hours of weekly math instruction. Accordingly, the ALJ ordered the District to provide Van Duyn with the "average of five hours per week of instruction in math that he has not been receiving." In every other contested area, the ALJ ruled in favor of the District. She found that Van Duyn's aide and teachers had been properly trained, that he had been placed in a self-contained classroom, that his teachers had worked with him on oral language skills, that he had received daily instruction in reading and that short-term objectives such as taking a daily note home had not initially been implemented but were now being followed.

Van Duyn appealed the ALJ's decision to the district court. The court first ruled that only events prior to February 1, 2002 (the date of the administrative hearing) could be used to determine whether the District failed to implement the...

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