Gregory K. v. Longview School Dist.

• Citation: 811 F.2d 1307
• Decision Date: 03 March 1987
• Docket Number: No. 86-3938,86-3938
• Parties: 37 Ed. Law Rep. 1104 GREGORY K., a student of the Longview School District, Plaintiff-Appellee, v. LONGVIEW SCHOOL DISTRICT, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1307

811 F.2d 1307

37 Ed. Law Rep. 1104

GREGORY K., a student of the Longview School District, Plaintiff-Appellee, v. LONGVIEW SCHOOL DISTRICT, Defendant-Appellant.

No. 86-3938.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 9, 1987.

Decided March 3, 1987.

Gregory K.'s mother, for the plaintiff-appellee.

Russell L. Perisho, Seattle, Wash., for the defendant-appellant.

Appeal from the United States District Court for the Western District of Washington.

Before EUGENE A. WRIGHT, FARRIS and BEEZER, Circuit Judges.

FARRIS, Circuit Judge:

This appeal arises from a long-standing dispute between the parents of Gregory K. and the Longview School District as to what constitutes "free appropriate public education" for Gregory under the Education for All Handicapped Children Act, 20 U.S.C. Sec. 1400 et. seq. Under the Act, the states receive federal funds to provide special education services. Procedures and standards for school districts to use in providing the special education services required under the Act are established by the states.

I BACKGROUND

Born in 1968, Gregory K. entered kindergarten in the Longview public schools in the fall of 1973. He repeated kindergarten during the school year 1974-75. In October 1974, Gregory was referred to the District's Special Education Department for evaluation, including an IQ test on which he scored 85. ¹ At that time, students were eligible for special education only with IQ scores below 75, so Gregory remained in a regular classroom.

In January 1976, while Gregory was in first grade, the District again assessed him for special education. He was found eligible, scoring 70 on an IQ test. The District developed an "individual education plan" for Gregory that recommended placing him in an "educable handicapped classroom," a program for mildly retarded students. Gregory's parents consented to placing him in this class. In June 1976, the District reevaluated his special education placement. Based on an IQ test score of 69 and his school performance, the District recommended that Gregory continue in the special education class. According to his parents, however, Gregory was unhappy and not learning in the class, so they chose to have him repeat first grade in a regular class during the 1976-77 school year.

During 1977-78 and 1978-79, Gregory was in regular second and third grade classes. He had great difficulties, and in May 1979 the District again assessed Gregory. His IQ was 69 and his academic performance was less than half the expected grade level. The parents had Gregory tested by Dr. Loveland, a clinical psychologist. The results of his testing were consistent with those of the District's testing, but he advised the parents against placing Gregory in a special education class for mildly retarded children. The parents again refused the District's placement. For the next two school years, 1979-80 and 1980-81, the parents placed Gregory in regular classrooms in a private school.

In the summer of 1981, Lois Lewis, an employee of the District's Indian Education Program, began tutoring Gregory. The parents believed that under her tutoring Gregory's learning progress increased. When they re-enrolled Gregory in the District in the fall of 1981, they asked that the tutoring continue. The principal of Gregory's school agreed, but advised the parents that the District could offer a special education program more appropriate for Gregory than the tutoring alone. In the summer of 1982, Dr. Levinson, a neurologist, examined Gregory. Although he did not use an IQ test, he concluded that Gregory was dyslexic, not mildly retarded.

The Indian Education Program in which Lois Lewis worked as a tutor was reorganized in 1982-83, and she resigned. In February 1983, the District told the parents that a new tutor would begin working with Gregory. The parents alleged that this change constituted a change of placement in violation of the Act's "status quo" provision.

They alleged that the proposed new tutor was not qualified as a special education teacher and that he would not be giving Gregory as much individual tutoring as he had received from Mrs. Lewis. The parents requested a hearing and removed Gregory from school for three hours each day to be tutored privately by Lois Lewis. They paid for this tutoring themselves.

The District again offered to assess Gregory for special education. After a dispute over testing was resolved, Gregory's IQ was found to be 66 and his academic performance in all areas was less than three-fourths the expected grade level. The parents disputed the District's conclusion that these results satisfied the state's criteria for "mildly mentally retarded." They believed that Gregory had not been properly tested for learning disabilities. The parents rejected the District's "individual education program" for Gregory based on this assessment.

In August of 1983, a hearing was held on this dispute. The parents and the District agreed to an interim schedule for Gregory. The schedule followed the District's 1983 IEP and included a mix of regular and special education classes, plus an hour of private tutoring each school day. The parents refused to accept any District tutors, however, and again removed Gregory from school for three hours of tutoring by Lois Lewis every day.

On December 7, 1983, the hearing officer issued findings of fact and conclusions of law, affirming all the District's actions. He ruled that an appropriate schedule for Gregory was four periods of regular education classes and two hours of special education classes per day. The state Superintendent of Public Instruction upheld these rulings.

The parents appealed to federal district court. After a bench trial on August 23, 1985, the court ruled: (1) that Gregory K. was not "mildly mentally retarded," but had a learning disability; (2) that the District's proposed placement was inappropriate; (3) that the tutoring arrangement begun in 1981 was "special education" under an appropriate "individual education program"; and (4) that the District violated the Act by improperly changing the tutoring program in 1983. The trial court ordered the District to grant Gregory academic credit for the tutoring and to reimburse Gregory's parents for the tutoring they had paid for themselves. The court denied the District's post-trial motions to dismiss damage claims and to require a three-year reassessment of Gregory.

II STANDARD OF REVIEW

The Court of Appeals reviews the district court's findings of fact for clear error. Burlington Northern, Inc. v. Weyerhaeuser Co., 719 F.2d 304, 307 (9th Cir.1983). "A finding of fact is deemed clearly erroneous when although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made." Id. Even where, as here, the district court relies on a written record of administrative proceedings, the clearly erroneous standard applies to findings of fact. Id.

The Court of Appeals reviews de novo the district court's conclusions of law. Id. Unless a mixed question of fact and law is primarily factual, we review mixed questions de novo. United States v. McConney, 728 F.2d 1195, 1199-1204 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). For example, whether the school district's proposed IEP was a "free appropriate public education" as required by the Education for All Handicapped Children Act is a mixed question that we review de novo. Wilson v. Marana Unified School District, 735 F.2d 1178, 1181 (9th Cir.1984); Department of Education, State of Hawaii v. Katherine D., 727 F.2d 809, 814 n. 2 (9th Cir.1983), cert. denied, 471 U.S. 1117, 105 S.Ct. 2360, 86 L.Ed.2d 260 (1985).

III DEFERENCE TO STATE ADMINISTRATIVE FINDINGS

The District contends that the trial court failed to give proper weight to the state As the Supreme Court has held, courts must give "due weight" to judgments of education policy when they review state hearings under 20 U.S.C. Sec. 1415(e). Hendrick Hudson Dist. Bd. of Ed. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 3050, 73 L.Ed.2d 690 (1982). Citing Rowley, we have held that "courts should not substitute their own notions of sound educational policy for those of the school authorities which they review." Wilson v. Marana Unified School Dist., 735 F.2d 1178, 1183 (9th Cir.1984). How much deference to give state educational agencies, however, is a matter for the discretion of the courts:

administrative findings in this dispute. Because the key issues are matters that we review de novo, we need not consider how much weight the trial court gave or ought to have given to the administrative findings. Instead, we address this issue to determine how much weight we are to give the administrative findings on those matters that we review de novo.

The traditional test of findings being binding on the court if supported by substantial evidence, or even a preponderance of the evidence, does not apply. This does not mean, however, that the findings can be ignored. The court, in recognition of the expertise of the administrative agency, must consider the findings carefully and endeavor to respond to the hearing officer's resolution of each material issue. After such consideration, the court is free to accept or reject the findings in part or in whole.

Town of Burlington v. Dept. of Ed., 736 F.2d 773, 792 (1st Cir.1984), aff'd, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985).

IV ELIGIBILITY CRITERIA

The District challenges the trial court's ruling that "Gregory K. has a learning disability" and "is not mentally retarded." This is a mixed question of law and fact. The undisputed facts are the results of much testing Gregory received over the years from the District and from experts consulted by his parents. We apply to these facts the state regulations for determining eligibility for special education under the Act.

Students are eligible...