541 F.3d 1202 (9th Cir. 2008), 07-35018, N.B. v. Hellgate Elementary School Dist., ex rel. Bd. of Directors, Missoula County, Mont.

Docket Nº:07-35018.
Citation:541 F.3d 1202
Party Name:N.B. and C.B., individually and as the parents of C.B., a minor, Plaintiffs-Appellants, v. HELLGATE ELEMENTARY SCHOOL DISTRICT, by and through its BOARD OF DIRECTORS, MISSOULA COUNTY, MONTANA, Defendant-Appellee.
Case Date:September 04, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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541 F.3d 1202 (9th Cir. 2008)

N.B. and C.B., individually and as the parents of C.B., a minor, Plaintiffs-Appellants,



No. 07-35018.

United States Court of Appeals, Ninth Circuit.

September 4, 2008

Argued and Submitted May 9, 2008.

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[Copyrighted Material Omitted]

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Andrée Larose, Montana Advocacy Program, Helena, MT, for the plaintiffs-appellants.

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Elizabeth A. Kaleva, Missoula, MT, for the defendant-appellee.

Brett M. Schuman, Morgan, Lewis, & Bockius LLP, San Francisco, CA, for amici curiae.

Appeal from the United States District Court for the District of Montana; Donald W. Molloy, Chief District Judge, Presiding. D.C. No. CV-05-00089-DWM.


ALARCÓN, Circuit Judge:


Appellants, minor C.B. and his parents (collectively “Appellants" ), allege that Hellgate Elementary School District (“Hellgate" ) violated the Individuals with Disabilities Education Act (“IDEA" ), 20 U.S.C. § 1400, by failing to provide minor C.B. with a free appropriate public education (“FAPE" ). Appellants appeal from the district court's order, affirming the hearing officer's findings of fact, conclusions of law, and order that found Hellgate did not violate the IDEA. On appeal, Appellants argue that C.B.'s procedural and substantive rights under the IDEA were violated. Appellants assert that Hellgate failed to meet its procedural obligation under the IDEA to evaluate C.B. to determine whether he was autistic. Appellants also contend that C.B. was denied his substantive rights under the IDEA when Hellgate denied him extended school year (“ESY" ) services. We vacate and remand the district court's order that Hellgate was not liable for violating C.B.'s procedural rights under the IDEA. We conclude that Hellgate did not fulfill its procedural requirements under the IDEA to evaluate C.B. We affirm the district court's decision that Hellgate did not violate C.B.'s substantive rights in denying ESY services.


C.B. lives with his parents within the Hellgate School District in Missoula, Montana. Hellgate is a local educational agency. It receives federal funding to fulfill its responsibility to provide its students a FAPE.


Prior to moving to Missoula, Montana, in August 2003, C.B. and his parents resided in Sparta Township, New Jersey. On January 3, 2003, when C.B. was two years and ten months old, he was examined by Dr. Arnold Gold. Dr. Gold concluded that an “autistic component appears to be complicating [C.B.]'s performance" and that speech therapy was mandatory.

The Sparta School District (“Sparta" ) designed an Individualized Education Program (“IEP" ) for C.B. on June 4, 2003, to be implemented from the period of July 1 to September 3, 2003, and the following school year. The IEP provided for twelve and a half-hours of special instruction, including speech/language therapy two times per week for thirty minutes, plus individual speech/language therapy two times per week for thirty minutes.


After Appellants moved to Missoula, Montana, in the summer of 2003, C.B. enrolled in Hellgate Elementary School. In August 2003, C.B.'s parents hand-delivered a copy of C.B.'s medical and educational records to Hellgate's special education director, Sally Woodruff. At this meeting, C.B.'s parents discussed Dr. Gold's evaluation with Ms. Woodruff.

Hellgate adopted the IEP designed by Sparta in August 2003. When Hellgate personnel observed that the plan was not benefitting C.B., it reduced speech therapy for a two and a half-week period from

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August to September 2003. Jamie Frost, the Hellgate speech pathologist, disagreed with the need for two hours of weekly speech/language therapy provided for in the Sparta IEP. She stated that it caused C.B. to “shut down" and “refuse to talk" in the classroom.

C.B.'s parents also enrolled him in Co-Teach, a private preschool program, in August 2003. C.B.'s parents informed Co-Teach that they were enrolling him at Co-Teach because they were “concerned about autism."

On September 22, 2003, Hellgate convened a meeting to develop a new IEP for C.B. C.B.'s parents were present. At the meeting, Hellgate personnel stated that they lacked sufficient information about C.B.'s educational needs to develop specific IEP goals and objectives for him. Before this meeting, the Hellgate members of the IEP team had read Dr. Gold's evaluation, but did not discuss it at the meeting. The IEP team determined that C.B. should be evaluated by conducting classroom observations for approximately six weeks to assess his speech, language, behavioral, social, and preschool readiness skills. The IEP team's plan was set forth in a document entitled a “diagnostic IEP." The diagnostic IEP reduced educational and related services from thirteen and a half hours to approximately five hours per week. It also reduced speech therapy from two hours per week to one-half hour per week. C.B.'s mother signed the diagnostic IEP.

On November 18, 2003, Hellgate conducted a meeting to create an IEP to replace the diagnostic IEP. During this meeting, C.B.'s parents suggested to Hellgate IEP team members that C.B. might be autistic. The Hellgate IEP team referred the parents to Missoula Child Development Center (“CDC" ), where free autism testing could be performed with parental consent. On March 3, 2004, the CDC reported that C.B. exhibited behavior consistent with autism spectrum disorder, including significant ongoing speech and language deficits, motor skill deficits, mild cognitive deficits, and atypical behaviors. In response to the CDC's diagnosis, the IEP team reconvened on March 22, 2004. It revised the IEP, incrementally increasing preschool instruction time from approximately five hours per week to twelve and a half hours per week by May 24, 2004.


The IEP team reconvened on May 7, 2004, to develop C.B.'s IEP for the 2004-05 school year and determine C.B.'s need for ESY services. C.B.'s parents were present. The Hellgate IEP team members determined that C.B. did not require ESY services. C.B.'s parents refused to endorse the proposed IEP. They expressed their disagreement with the Hellgate team members' decision not to provide ESY services. The parents did not sign the plan and did not enroll C.B. in Hellgate in September 2004.



Appellants filed a request for an impartial due process hearing with the Montana Office of Public Instruction (“OPI" ) on or about September 28, 2004. An administrative due process hearing was conducted over the course of seven days in January and February 2005. The due process hearing officer issued his findings of fact, conclusions of law, and order on April 25, 2005, denying Appellants' claim for relief.


Appellants filed a Complaint with the United States District Court for the District of Montana on May 24, 2005. The

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district court affirmed the hearing officer's order. On January 3, 2007, Appellants filed a timely appeal with this court. This court has jurisdiction under 28 U.S.C. § 1291, as this is an appeal from a final judgment of a United States District Court entered December 4, 2006. This is a civil action arising under the laws of the United States, namely the IDEA. The district court had jurisdiction pursuant to 28 U.S.C. § 1331 and 20 U.S.C. § 1415(i)(3) (1997).



We review the district court's findings of fact for clear error even when they are based on the written record of administrative proceedings. Burlington N., Inc. v. Weyerhaeuser Co., 719 F.2d 304, 307 (9th Cir.1983); Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1310 (9th Cir.1987). A finding of fact is clearly erroneous when the evidence in the record supports the finding but “the reviewing court is left with a definite and firm conviction that a...

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