M.C. v. Antelope Valley Union High Sch. Dist.

• Decision Date: 27 March 2017
• Docket Number: No. 14-56344,14-56344
• Parties: M.C., BY AND THROUGH his guardian ad litem M.N.; M. N., Plaintiffs–Appellants, v. ANTELOPE VALLEY UNION HIGH SCHOOL DISTRICT, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

858 F.3d 1189

M.C., BY AND THROUGH his guardian ad litem M.N.; M. N., Plaintiffs–Appellants,

v.ANTELOPE VALLEY UNION HIGH SCHOOL DISTRICT, Defendant–Appellee.

No. 14-56344

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 2, 2016 Pasadena, California

Filed March 27, 2017

Amended May 30, 2017

Christian M. Knox (argued), Colleen A. Snyder Holcomb, Daniel R. Shaw, and F. Richard Ruderman, Ruderman & Knox LLP, Sacramento, California, for Plaintiffs–Appellants.

David R. Mishook and Christopher J. Fernandes, Fagen Friedman & Fulfrost LLP, Oakland, California; for Defendant-Appellee.

Jennifer E. Nix and Carl D. Corbin, School and College of Legal Services of California, Santa Rosa, California; Keith J. Bray and D. Michael Ambrose, California School Boards Association/Education Legal Alliance, West Sacramento, California; Ronald D. Wenkart, Orange County Department of Education, Costa Mesa, California; for Amici Curiae California School Boards Association and Education Legal Alliance.

Barrett K. Green and Daniel L. Gonzalez, Littler Mendelson PC, Los Angeles, California, for Amicus Curiae William S. Hart Union High School District.

Before: Stephen Reinhardt, Alex Kozinski, and Kim McLane Wardlaw, Circuit Judges.

OPINION

KOZINSKI, Circuit Judge:

The Individuals with Disabilities Education Act ("IDEA") guarantees children with disabilities a free appropriate public education ("FAPE"). 20 U.S.C. § 1400(d)(1)(A). We consider the interplay between the IDEA's procedural and substantive safeguards.

BACKGROUND

M.C. suffers from Norrie Disease

, a genetic disorder that renders him blind. He also has a host of other deficits that cause him developmental delays in all academic areas. M.C.'s mother, M.N., met with several school administrators and instructors to discuss M.C.'s educational challenges and draft an individualized educational program ("IEP"). At the conclusion of this meeting, she signed an IEP document and "authorize[d] the goals and services but [did] not agree it provides a FAPE."

M.N. then filed a due process complaint alleging that the Antelope Valley Union High School District (the "District") committed procedural and substantive violations of the IDEA. The due process hearing took place before an Administrative Law Judge who denied all of M.C.'s claims and the district court affirmed.

DISCUSSION

The IDEA's "primary goal is ‘to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services....' " J.L. v. Mercer Island Sch. Dist. , 592 F.3d 938, 947 (9th Cir. 2010) (quoting 20 U.S.C. § 1400(d)(1)(A) ). A FAPE must be "tailored to the unique needs of the handicapped child by means of an ‘individualized educational program’ (IEP)." Hendrick Hudson Cent. Sch. Dist. Bd. of Educ. v. Rowley , 458 U.S. 176, 181, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (quoting 20 U.S.C. § 1401(18) ). An IEP must contain, among other things, "a statement of the child's present levels of academic achievement," "a statement of measurable annual goals" and "a statement of the special education and related services ... to be provided to the child." 20 U.S.C. § 1414(d)(1)(A)(i). When formulating an IEP, a school district "must comply both procedurally and substantively with the IDEA," M.L. v. Fed. Way Sch. Dist. , 394 F.3d 634, 644 (9th Cir. 2005) (citing Rowley , 458 U.S. at 206–07, 102 S.Ct. 3034 ), so that the process "will be informed not only by the expertise of school officials, but also by the input of the child's parents or guardians," Endrew F. v. Douglas Cty. Sch. Dist. , 580 U.S. ––––, ––––, 137 S.Ct. 988, 197 L.Ed.2d 335 (2017).

I. STANDARD OF REVIEW

Judicial review in IDEA cases "differs substantially from judicial review of other agency actions, in which courts are generally confined to the administrative record and are held to a highly deferential standard of review." Ojai Unified Sch. Dist. v. Jackson , 4 F.3d 1467, 1471 (9th Cir. 1993). We review whether the state has provided a FAPE de novo. Union Sch. Dist. v. Smith , 15 F.3d 1519, 1524 (9th Cir. 1994). We can accord some deference to the ALJ's factual findings, but only where they are "thorough and careful," and "the extent of deference to be given is within our discretion." Id. (citations omitted).

The district court accorded the ALJ's findings substantial deference because the ALJ "questioned witnesses during a three-day hearing" and "wrote a 21-page opinion that reviewed the qualifications of witnesses and culled relevant details from the record." But neither the duration of the hearing, nor the ALJ's active involvement, nor the length of the ALJ's opinion can ensure that the ALJ was "thorough and careful."¹ J.W. ex rel. J.E.W. v. Fresno Unified Sch. Dist. , 626 F.3d 431, 440 (9th Cir. 2010). And, in this case, the ALJ was neither thorough nor careful. As plaintiffs point out, the ALJ didn't address all issues and disregarded some of the evidence presented at the hearing. Even the district court recognized that the ALJ's analysis "is not entirely satisfying." Accordingly, the district court erred in deferring to the ALJ's findings.

II. PROCEDURAL VIOLATIONS

The IDEA contains numerous procedural safeguards that are designed to protect the rights of disabled children and their parents. See 20 U.S.C. § 1415. These safeguards are a central feature of the IDEA process, not a mere afterthought: "Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process as it did upon the measurement of the resulting IEP against a substantive standard." Rowley , 458 U.S. at 205, 102 S.Ct. 3034. Because disabled children and their parents are generally not represented by counsel during the IEP process, procedural errors at that stage are particularly likely to be prejudicial and cause the loss of educational benefits.

Therefore, compliance with the IDEA's procedural safeguards "is essential to ensuring that every eligible child receives a FAPE, and those procedures which provide for meaningful parent participation are particularly important." Amanda J. v. Clark Cty. Sch. Dist. , 267 F.3d 877, 891 (9th Cir. 2001). "Procedural violations that interfere with parental participation in the IEP formulation process undermine the very essence of the IDEA." Id. at 892.

Plaintiffs allege that the District violated the IDEA by (1) failing to adequately document the services provided by a teacher of the visually impaired ("TVI"), (2) failing to specify the assistive technology ("AT") devices provided and (3) failing to file a response to the due process complaint.

A. Failure to Adequately Document TVI Services

Plaintiffs claim that the District didn't provide a " ‘written record of reasonable expectations' to hold the District accountable for the provision of vision services to M.C." (quoting Amanda J. , 267 F.3d at 891 ). A brief history of the District's shifting offer of TVI services is necessary: The IEP document signed by M.N. and the District included an offer of 240 minutes of TVI services per month . According to the District, it realized a week later this was a mistake. But the District did nothing to notify M.N. More than a month later, the District purported to unilaterally amend the IEP by changing the offer of TVI services to 240 minutes per week . The District didn't send M.N. a copy of the revised IEP or otherwise notify her of this change. In fact, she didn't learn of it until the first day of the due process hearing, a month later. Moreover, at the hearing, District witnesses testified that the District offered M.C. 300 minutes of TVI services per week.

Plaintiffs claim that the District's failure to accurately document the offer of TVI services denied M.C. a FAPE by precluding M.N. from meaningfully participating in the IEP process. Before discussing the merits of this claim we must address the District's argument that the claim is waived.

1. The district judge recognized that plaintiffs' due process complaint "arguably encompassed Plaintiffs' argument that the provision of TVI services was inadequate." The judge nevertheless found that plaintiffs "waived any argument that the District's failure to specify the frequency of TVI services in the August 2, 2012 IEP resulted in an actual denial of an educational benefit to M.C." because the due process complaint was superseded by the ALJ's restatement of issues, which omitted the adequacy of TVI services.

The district judge held that plaintiffs waived the issue by failing to object to this omission.² But plaintiffs weren't aware that the District had unilaterally changed the IEP until after the ALJ had restated the issues, so they could hardly have raised that as a procedural violation. And it turns out that the amendment didn't even provide an accurate statement of the services that M.C. was offered. District witnesses later testified that the District intended to offer M.C. 300 minutes of TVI services per week.

The district judge purported to understand the difficult position that plaintiffs were in due to this sequence of events but still found that "there [was] no indication in the record that Plaintiffs ever sought during the administrative hearing to amend the issues to be addressed to include the District's failure to provide M.C. with adequate TVI services." But we generally treat issues as if they were raised in the complaint if they are tried by consent. Rule 15 of the Federal Rules of Civil Procedure provides that an issue "tried by the parties' express or implied consent ... must be treated in all respects as if raised in the pleadings." Fed. R. Civ. P. 15(b)(2) ; see 6A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1491 (3d ed.). While we haven't previously recognized this practice in IDEA cases, it's often been applied in a variety of other agency adjudications: before the IRS, Lysek...