Forest Grove School Dist. v. T.A.

• Decision Date: 28 April 2008
• Docket Number: No. 05-35641.,05-35641.
• Citation: 523 F.3d 1078
• Parties: FOREST GROVE SCHOOL DISTRICT, Plaintiff-Appellee, v. T.A., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

523 F.3d 1078

FOREST GROVE SCHOOL DISTRICT, Plaintiff-Appellee, v. T.A., Defendant-Appellant.

No. 05-35641.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 11, 2008.

Filed April 28, 2008.

Mary E. Broadhurst, Mary E. Broadhurst, P.C., Eugene, OR, for the defendant-appellant.

Andrea L. Hungerford and Richard G. Cohn-Lee, The Hungerford Law Firm, LLP, Oregon City, OR, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon; Michael W. Mosman, District Judge, Presiding. D.C. No. CV-04-00331-MO.

Before: PAMELA ANN RYMER, SUSAN P. GRABER, and CARLOS T. BEA, Circuit Judges.

Opinion by Judge GRABER; Dissent by Judge RYMER.

GRABER, Circuit Judge:

Defendant T.A., a former student of Plaintiff Forest Grove School District, appeals the district court's denial of reimbursement under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1482, for his expenses in attending a private school. We must decide whether a student who never received special education and related services from a school district nevertheless may recover reimbursement for the costs of private school education. We conclude that such a student is not barred as a matter of law from receiving reimbursement. In the IDEA, Congress conferred broad discretion on the courts to provide appropriate equitable relief, including reimbursement for attendance at a private school. Later amendments clarifying the relevant considerations for those students who previously received special education and related services do not apply to students, like T.A., who never received special education and related services. Because the district court applied an improper legal framework to T.A.'s claim for reimbursement under general principles of equity, we reverse and remand for reconsideration.

FACTUAL AND PROCEDURAL HISTORY

T.A. was born on September 11, 1985. He resided at all relevant times in the Forest Grove School District. T.A. was enrolled in the School District from kindergarten until the spring semester of his junior year in high school, when his parents removed him from public school and enrolled him in a residential private school. Throughout his time in public school, T.A. experienced difficulty paying attention in class and completing his school work, but he successfully passed from grade to grade due, in part, to extensive at-home help from his parents and sister. T.A. never received special education and related services from the School District.

During his time in public school, the School District evaluated T.A. for a disability only once, in 2001. In December 2000, T.A.'s guidance counselor suspected that T.A. might have a learning disability and referred him for an evaluation for special education services. In internal meetings in early 2001, the School District's staff discussed the possibility that T.A. might have Attention Deficit Hyperactivity Disorder ("ADHD"). The notes from a January 16, 2001, meeting state "Maybe ADD/ADHD?" and the notes from a February 13, 2001, meeting mention "suspected ADHD." T.A.'s parents were neither present at the meetings nor informed of the School District staff's suspicion that T.A. might have ADHD. T.A.'s parents did not request evaluation for ADHD, and T.A. was evaluated only for a learning disability.¹

Several psychologists and educational specialists examined T.A. and administered tests throughout the first half of 2001. On June 13, 2001, the team of specialists unanimously concluded that T.A. did not have a learning disability and therefore was ineligible for special education. T.A.'s mother, who attended the meeting, agreed with that determination. The school psychologist completed his report in September 2001, stating that T.A. was not eligible for special education under the IDEA on the basis of a learning disability, but "[p]ossible 504."² No one ever followed up on either the reference to "[p]ossible 504" in the psychologist's report or the references to "suspected ADHD" in the School District's staff meeting notes.

At some point during 2002, T.A. began using marijuana. In early 2003, his use became regular, and he exhibited noticeable personality changes. On February 11, 2003, T.A. ran away from home. The police brought him back a few days later. T.A.'s parents took him to a psychologist and, eventually, to a hospital emergency room.

Dr. Fulop, a psychologist hired by T.A.'s parents, met with T.A. a number of times in early 2003. Dr. Fulop held several lengthy sessions immediately after T.A. ran away from home. On March 15, 2003, Dr. Fulop diagnosed T.A. with ADHD, depression, math disorder, and cannabis abuse. Dr. Fulop recommended a residential program for T.A. because of T.A.'s failure to live up to his potential in school, his difficulties at home, his attitude toward school, his sense of hopelessness, and his drug problem.

In response to T.A.'s behavior, T.A.'s parents removed him from the School District's public high school and, in March 2003, sent him to a three-week program at Catherine Freer Wilderness Therapy Expeditions. The discharge report written by Freer's staff identified T.A.'s primary diagnosis as cannabis dependence and his secondary diagnosis as depression.

Soon after T.A. completed the Freer Expedition, on March 24, 2003, his parents enrolled him in Mount Bachelor Academy, a residential private school that describes itself as "designed for children who may have academic, behavioral, emotional, or motivational problems." Although T.A. committed a number of serious rule violations at Mount Bachelor Academy, he graduated in June 2004. He also would have graduated from public high school in 2004 had he remained there.

On March 28, 2003, four days after enrolling T.A. at Mount Bachelor Academy, T.A.'s parents hired a lawyer. On April 18, 2003, they requested a hearing pursuant to 20 U.S.C. § 1415(f) and sought (among other remedies) an order requiring the School District to evaluate T.A. in all areas of suspected disability. The Office of Administrative Hearings for the State of Oregon initiated a hearing in May 2003, but the assigned hearing officer continued the matter to allow the School District to evaluate T.A.

During the summer months of 2003, several medical and educational specialists from the School District evaluated T.A. On July 7, 2003, a multi-disciplinary team of school officials convened to determine T.A.'s eligibility under the IDEA. The team acknowledged T.A.'s learning difficulties, his diagnosis of ADHD, and his depression, but a majority found that T.A. did not qualify under the IDEA in the areas of learning disability, ADHD, or depression, because those diagnoses did not have a severe effect on T.A.'s educational performance. On August 26, 2003, a similar team convened and determined that T.A. was ineligible for services or accommodations under § 504 of the Rehabilitation Act of 1973.

The administrative hearing then resumed in September 2003. Both parties submitted evidence. The evidence included the extensive history recounted above. In addition, another psychologist, Dr. Callum, examined T.A.'s records and testified at the hearing that T.A.'s ADHD "seems to be more of a secondary, possibly, tertiary" cause of his difficulties. She concluded that T.A. would be able to complete public high school without any services beyond those given to all students. She did state, however, that the references to the possibility of ADHD in the meeting notes following the 2001 referral would have caused her to evaluate T.A. for ADHD.

On January 26, 2004, the Hearing Officer issued a lengthy opinion that contained extensive findings of fact and conclusions of law. She held that T.A. was disabled and therefore eligible for special education under the IDEA and § 504 of the Rehabilitation Act of 1973; that the School District had failed to offer T.A. a free appropriate public education; that the School District was not responsible for the costs of the Freer Expedition or the evaluation by Dr. Fulop; but that the School District was responsible for the costs of sending T.A. to Mount Bachelor Academy. Monthly tuition at Mount Bachelor Academy was $5,200.

The School District appealed to the district court pursuant to 20 U.S.C. § 1415(i), arguing that the Hearing Officer erred by granting reimbursement for T.A.'s tuition at Mount Bachelor Academy.³ According to the School District, reimbursement was unwarranted because T.A. unilaterally withdrew from public school without providing prior notice to the School District, he never received special education and related services from the School District, and he withdrew for reasons unrelated to his disability (that is, substance abuse and behavioral problems).

The district court reversed the Hearing Officer's grant of reimbursement to T.A. The court adopted all of the Hearing Officer's findings of fact, but held that the Hearing Officer had erred as a matter of law in granting private school reimbursement. The district court held that T.A. was statutorily ineligible for reimbursement under 20 U.S.C. § 1412(a)(10)(C). The court also held that, "[e]ven assuming that tuition reimbursement may be ordered ..., under general principles of equity ..., the facts in this case do not support such an exercise of equity."

T.A. timely appealed to this court. This case was originally scheduled for oral argument on May 9, 2007. On May 3, we granted the parties' joint motion to waive oral argument and, at the same time, ordered supplemental briefing. On August 8, we referred the case to mediation and deferred submission pending the Supreme Court's decision in Frank G. v. Board of Education, 459 F.3d 356 (2d Cir.2006), petition for cert. filed, 75 U.S.L.W. 3248 (U.S. Oct. 23, 2006) (No. 06-580), cert. denied, ___ U.S. ___, 128 S.Ct. 436, 169 L.Ed.2d 325 (2007). On September 18, we granted the parties' joint motion to defer mediation until after the...