967 F.2d 1298 (9th Cir. 1992), 90-16358, Hoeft v. Tucson Unified School Dist.

Docket Nº:90-16358.
Citation:967 F.2d 1298
Party Name:Mary HOEFT, individually and as a parent of Donovan Hoeft; et al., on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. TUCSON UNIFIED SCHOOL DISTRICT, a political subdivision of the State of Arizona; C. Diane Bishop, in her capacity as Superintendent of Public Instruction for the State of Arizona, Defendants-Appelle
Case Date:June 17, 1992
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1298

967 F.2d 1298 (9th Cir. 1992)

Mary HOEFT, individually and as a parent of Donovan Hoeft;

et al., on behalf of themselves and all others

similarly situated, Plaintiffs-Appellants,


TUCSON UNIFIED SCHOOL DISTRICT, a political subdivision of

the State of Arizona; C. Diane Bishop, in her capacity as

Superintendent of Public Instruction for the State of

Arizona, Defendants-Appellees.

No. 90-16358.

United States Court of Appeals, Ninth Circuit

June 17, 1992

Argued and Submitted Nov. 6, 1991.

Page 1299

Thomas J. Berning, Tucson, Ariz., for plaintiffs-appellants.

Ruth B. Davis, Tucson, AZ, for Tucson United School Dist.

Grant Woods, Atty. Gen. by William V. Hornung, Asst. Atty. Gen., for defendants-appellees State of Ariz. and C. Diane Bishop, in her capacity as Superintendent of Public Instruction for the State of Ariz.

Appeal from the United States District Court for the District of Arizona.

Before: BOOCHEVER and NORRIS, Circuit Judges, and GILLIAM, District Judge. [*]

BOOCHEVER, Circuit Judge:

This is an appeal from the district court's dismissal of a class action suit brought by parents of disabled students alleging violations of the federal Individuals with Disabilities Education Act and state education law. The plaintiffs, parents of four disabled children, on behalf of themselves, their children, and a class of similarly situated children, sought declaratory and injunctive relief against the Tucson Unified School District (Tucson Unified) and Arizona State Superintendent of Public Instruction C. Diane Bishop (the state superintendent). They alleged that Tucson Unified has formal, written policies and informal, de facto policies concerning extended school year services which operate to deny children with disabilities an appropriate, individually tailored education, in violation of the Education of the Handicapped Act, now known as the Individuals with Disabilities Education Act (IDEA), 1 20 U.S.C. §§ 1400-1485 (1988 & Supp.1990), and state law. The district court dismissed their complaint based on the plaintiffs' failure to exhaust administrative remedies.

In deciding this case, we are called upon to determine whether parents must exhaust administrative remedies when they

Page 1300

mount a class action challenge to alleged local school district policies, as opposed to challenging their children's individualized education programs formulated pursuant to these policies. We conclude that under the facts of this case, they must.


Before addressing the facts and legal issues in this case, we provide a brief overview of the substantive and procedural provisions of the IDEA and related federal regulations. The IDEA is a comprehensive educational scheme, conferring on disabled students a substantive right to public education and providing financial assistance to enable states to meet their educational needs. Honig v. Doe, 484 U.S. 305, 310, 108 S.Ct. 592, 597, 98 L.Ed.2d 686 (1988). Federal funding is conditioned upon state compliance with the IDEA's extensive substantive and procedural requirements. To qualify for federal funds, the state must have in effect "a policy that assures all children with disabilities the right to a free appropriate public education." 20 U.S.C. § 1412(1). Parental involvement is a central feature of the IDEA. Parents participate along with teachers and school district representatives in the process of determining what constitutes a "free appropriate public education" for each disabled child. This process culminates in the formulation of an individualized education program, tailored to the child's unique needs. 20 U.S.C. §§ 1401(a)(18), (20).

To guarantee that parents have "an opportunity for meaningful input into all decisions affecting their child's education," the IDEA prescribes an elaborate system of procedural safeguards. Honig, 484 U.S. at 311, 108 S.Ct. at 598. Parents must be notified in writing of changes the school district proposes or refuses to make in their child's educational program. § 1415(b)(1)(C). This notice must contain a description of procedural rights available to parents for challenging the district's decision and an explanation of the reasons for the decision. 34 C.F.R. § 300.505 (1991). Parents have the right to examine their child's educational records and obtain an independent evaluation of their child. 20 U.S.C. § 1415(b)(1)(A). Moreover, the IDEA requires that states guarantee parents the right to seek review of any decisions concerning their child's education which they consider inappropriate. This right includes an opportunity to bring complaints about "any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." § 1415(b)(1)(E). The preliminary forum for parent complaints is an "impartial due process hearing" conducted by the local school district or by the state. § 1415(b)(2). If the hearing is conducted by the local school district, the parents may appeal the decision to the state educational agency. § 1415(c). Parents dissatisfied by the state's decision may appeal by filing a civil action in federal or state court. § 1415(e)(2). Arizona has established due process procedures pursuant to these requirements. Ariz.Admin.Code § R7-2-405 (1989).

In addition to the IDEA's procedural safeguards for ensuring parental involvement in the educational decisionmaking process, federal regulations provide an administrative mechanism for ensuring state and local compliance with federally funded education programs, including the IDEA. The Education Division General Administrative Regulations (EDGAR), 34 C.F.R. §§ 76.1-76.910 (1991), require states to adopt a formal procedure for receiving and resolving complaints that the state or local education agency is violating the IDEA or its regulations. 34 C.F.R. § 76.780. The state EDGAR complaint procedure is to include a time limit of 60 days for the state to investigate and resolve complaints, to be extended only under "exceptional circumstances." 34 C.F.R. § 76.781(a), (b). A complainant dissatisfied with the state's disposition of an EDGAR complaint may request review of the state's decision by the U.S. Secretary of Education. 34 C.F.R. 76.781(c). Arizona has in place a complaint procedure as required by EDGAR. Ariz.Admin.Code § R7-2-804 (1989).

Page 1301

Against this background of substantive and procedural rights, we turn to the facts and proceedings in this case.


The children of the named plaintiffs are disabled students who receive special education and related services from Tucson Unified, but who do not receive the extended school year services to which their parents believe they are entitled. Extended school year programming is educational programming which extends instruction beyond the conventional school year to prevent serious regression over the summer months. See generally Johnson v. Independent School Dist. No. 4, 921 F.2d 1022, 1027-28 (10th Cir.1990) (per curiam) (discussing extended year programming purposes and eligibility criteria), cert. denied, --- U.S. ----, 111 S.Ct. 1685, 114 L.Ed.2d 79 (1991). Because this case is before us following dismissal on the pleadings, 2 for purposes of our review we take as true the following factual allegations.

Donovan Hoeft is a nine-year-old child with multiple disabilities who is blind and mentally retarded. Tucson Unified provided him with four weeks of extended year programming during the summers of 1986 and 1987. Although Donovan's mother requested an eight-week extended year program for the summer of 1988, Tucson Unified provided Donovan with only a four- to five-week program. Tucson Unified denied Donovan extended year programming during the summer of 1989. Donovan's mother did not seek administrative review of the educational program Tucson Unified formulated for her son.

Garrett Bolton is a nine-year-old autistic child with multiple disabilities. Tucson Unified provided him with four weeks of extended year programming during the summer of 1986, but refused his parents' request for additional extended year programming. By the fall of 1986, he had significantly regressed. When Tucson Unified proposed extended year services for the summer of 1987 which Garrett's parents considered inadequate, they enrolled him in a private summer program. Tucson Unified denied the Boltons' request for extended year services for the summer of 1988 because Garrett had shown no regression after the previous summer. The Boltons again enrolled him in a private program in the summer of 1988, and for the summer of 1989 Tucson Unified again denied the Boltons' request for extended year services based on his lack of regression during the previous summer. The Boltons did not appeal any of the decisions Tucson Unified made concerning their son's educational program. They had requested a due process hearing to contest the denial of extended year services for the summer of 1989, but withdrew their request when a private agency offered an alternative summer program.

Jason Koch is a fourteen-year-old child with serious emotional disabilities. Tucson Unified denied his parents' request for extended year programming for the summer of 1988 because of a lack of empirical data indicating significant regression in academic skills over the previous summer. The parents placed Jason in a three-month summer program outside the district. Based on Jason's lack of regression the following fall, Tucson Unified again denied him extended year programming for summer 1989. Jason's parents at no time sought administrative review of Tucson Unified's denial of extended year services.

Brandon Wright is a...

To continue reading